Bosses must be careful when suspending staff

Beware a legal minefield, writes Chris Phillips

While the battle over Employment Tribunal fees in the Supreme Court has understandably captured headlines in recent weeks, another less prominent but nonetheless very practical challenge for employers has also been the subject of judicial scrutiny.

Many employers will have been faced with allegations of serious misconduct against a member of staff at some point, and had to decide whether or not to suspend them from work until they get to the bottom of things. Usually, a manager will do this to protect colleagues who may otherwise feel under pressure as potential witnesses if the employee remains at work, or to preserve evidence of other kinds such as e-mails or documents that might go astray.

In days past, suspension was in itself seen as punitive, especially when even sitting at home being paid meant missing out on valuable shift allowances or overtime. Even though we now better understand the theory of what suspension is for, the stigma attached to it prevails. It should be seen only as a means to an end: allowing a fair investigation that has the potential to exonerate the employee.

A recent decision of the English Court of Appeal examined one such case concerning a teacher, Simone Agoreyo, accused of using unreasonable force towards a pupil. Although she was found not to have acted inappropriately, she later challenged the decision by her headmaster to suspend her before she was cleared of any blame. This was despite the familiar assurances given in the suspension letter that it was a neutral measure to facilitate an investigation and should not be taken as any indication of a management belief in her guilt.

In the context of a school, where safeguarding is so important, it is easy to see why the head teacher acted in a way that must have seemed prudent at the time. Yet, the Court decided it was a “kneejerk” response which, in the circumstances, amounted to a breach of the employee’s contract. As a result, the damage to her trust and confidence in her employer was enough to justify her claim. It was noted by the Court that in deciding to suspend Ms Agoreyo, the head teacher was not concerned about child protection.

Each case will be different, but this is the point. One size should not fit all and employers must look really carefully to see whether suspension is reasonable and absolutely necessary. They need to ask themselves if there might be an alternative which protects the fragile reputation of the employee who, at that stage, should be presumed innocent until the evidence gathered suggests otherwise.

The need to do this is particularly strong where a vocational professional, like a teacher, is concerned. In Ms Agoreyo’s case, the Court found that there had been no attempt to assess her version of events before suspension or any real consideration given to alternatives before removing her from teaching duties. This seemed to betray an unacceptably heavy-handed approach.

Though not a feature of the Agoreyo case, another common problem which draws criticism from courts and tribunals is the length of time taken during which an employee remains in the “limbo” of suspension.

Employers need to ensure that even where they feel a preliminary assessment justifies temporary removal, this lasts no longer than is absolutely necessary to conclude any investigation and proceed to the next stage. If a colleague is absent without explanation for any length of time, inevitably, questions can be asked and suspicions aroused. All of this can be damaging and have the effect of undermining the employee’s trust and confidence to a point where they feel no option but to resign.

Sometimes, delays can be unavoidable, such as where a key witness is on leave or unwell but employers must make every effort to expedite the process and look after all involved, including victims, witnesses and the accused employee. A duty of care is owed to all of them, equally. Chris Phillips is a Partner at Loch Employment Law, part of the Loch Associates Group.