Kenny Scott: If you need to suspend an employee, play it by the book

Kenny Scott is senior associate in the employment team at Shoosmiths in Scotland.

In these circumstances, when should an employer suspend, how do you deal with reluctant witnesses and what’s an effective method of response when an employee under investigation goes off sick with work-related stress?

Suspending an employee, in response to allegations of misconduct, can impact on the subsequent disciplinary process and result in claims for breach of contract and/or constructive dismissal.

The Court of Appeal confirmed in The Mayor and Burgesses of the London Borough of Lambeth v Agoreyo (March 2019) that employers must have “reasonable and proper” cause to suspend an employee, so as not to breach the implied term of trust and confidence.

The Agoreyo case concerned a teacher suspended over claims that she used unreasonable force towards two children. On being suspended, she resigned and brought a claim for breach of contract, alleging her suspension was a breach of the implied term of trust and confidence. However, the Court of Appeal held that when assessing whether there has been such a breach, the test to be applied is whether the employer had reasonable and proper cause for its actions.

This Appeal Court decision cleared up the confusion caused by an earlier High Court judgment that suggested suspension must be “reasonable and/or necessary”. The Court of Appeal confirmed that there is no test of necessity and commented that the question of whether suspension is a “neutral act” is not relevant or helpful in determining whether there has been a breach of the implied term of trust and confidence.

In Agoreyo, the allegations were serious and had to be investigated. Crucially, the employer had a duty to protect the children in its care pending an investigation. Therefore, it was ruled that the employer had reasonable and proper cause.

Employers will welcome the clarity brought by the Court of Appeal’s decision. Employers should keep in mind, general principles when contemplating suspension. Is there an explanation for the employee’s conduct? It is best practice to speak with the employee first. What’s the reason for the suspension? Avoid its use as a routine response.

Reasonable grounds for suspension can include when the employee has threatened violence or damage to property. Consider alternatives. If suspension is to prevent influencing of witnesses or destruction of evidence, could the employee undertake other duties or work elsewhere during the investigation? Be sure to apply a suspension policy consistently to avoid allegations of discrimination.

A misconduct investigation can see colleagues of the accused reluctant to give evidence in order to protect that person or for fear of reprisal from the individual.

Unless there is clear evidence of a direct threat to a witness, an employee is under an obligation to co-operate with an investigation. Failure to do so can be treated as misconduct. Consideration may be given to permitting witness evidence anonymously but only in exceptional cases. Fairness to the accused generally requires the full case against them to be clearly set out.

It’s imperative that the employer retains control of the process. If an employee goes off sick and the sickness is genuinely unrelated to allegations of misconduct, the employer should delay the process until the employee is medically fit to participate.

However, in many instances, work-related stress at the time of the suspension or investigation is directly linked to that investigation. Occupational health will often advise that the stressor (i.e. the internal misconduct process) needs to be dealt with to help the employee move on. Occasionally, a different approach can be helpful. For example, hold meetings off site, and in addition to their statutory right (to be accompanied by a union representative or work place colleague), allow the employee to be accompanied by an additional family support person, or even conduct proceedings by way of written questions and response.

Active consideration of the above factors can help to alleviate the stress for all parties involved. However, every case is different and to avoid pitfalls it is recommended that legal advice is sought at an early stage.

Kenny Scott is senior associate in the employment team at Shoosmiths in Scotland.