Suspension – Necessary Or Reasonable & Proper?

It is often the case that, during investigation and disciplinary proceedings, a company will consider whether to suspend an employee from their duties.  There have been a number of cases which have examined the extent to which an employer is permitted to suspend and, in some cases, it has been determined that an employee suspended without justification may be able to bring a claim of constructive dismissal.

It is generally accepted that there has to be a serious allegation of misconduct in order for suspension to be potentially justifiable.  Typically, an employer will rely on grounds such as the need to protect witnesses or, for example, in cases of alleged theft or dishonesty, the need to protect the business, its information, or its finances.

It must be made clear, however, that suspension is a neutral act.  It is not a disciplinary sanction in itself and employers should be careful to ensure that the employee continues to remain on full pay during suspension.

In reality, the act of suspension is likely to cause damage to the employment relationship because it isolates an employee, and colleagues remaining in the business will no doubt be asking the whereabouts of the suspended employee.  For that reason, the Courts have generally required a threshold to be met in order for suspension to be justifiable.

In a recent case which has come before the Court of Appeal, the question as to whether an employee was constructively dismissed in the circumstances of suspension was considered.  In this case, a primary school teacher was suspended after allegations were raised suggesting that she used excessive force against two pupils.

In response to the suspension, the employee alleged that the decision was a knee-jerk one, and one which breached the implied term of trust and confidence entitling her to resign and claim constructive dismissal.

The employee did have some success in her claim, as it was determined that

suspension had to be “necessary” in order for this to be justified.  In the circumstances, it was deemed to be not necessary and thus her claim succeeded.

However, before the Court of Appeal, it was held that there was no breach of trust and confidence.  The employer simply had to show that there was “reasonable and proper cause” to suspend and, here, that threshold was met.

To impose an obligation on the employer to show it was “necessary” to suspend would be unreasonable.

The case serves as a reminder of the need for justification in suspending an employee and for the employer to apply its mind to what exactly it is protecting by taking this measure.  However, it is pleasing to note that the threshold imposed on employers when considering suspension is not as oppressive as needing to show necessity.