Avoiding Impulsive Suspensions

First published in People Management on 8 May 2012

Employers need procedures to prevent potentially damaging "knee-jerk reactions" to allegations of wrong-doing

Should employers suspend employees accused of misconduct while allegations against them are investigated? Most employers would probably say 'yes', while taking care to notify the employees concerned that suspension is not an assumption of guilt or a disciplinary sanction.

A recent Court of Appeal case makes it clear that this kind of approach to suspension is wholly inadequate. In Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, two nurses in charge of a dementia ward were accused of assaulting an 87-year old patient, whose illness made him extremely aggressive, in their efforts to restrain him safely. The nurses were suspended and later dismissed.

Judicial advice

The Court of Appeal upheld the nurses' claims for unfair dismissal. But Lord Justice Elias took the unusual step of adding a footnote to his judgment, expressing his concern that many employers automatically responded to allegations of misconduct by suspending the employees concerned. He said that suspension should not be a "knee jerk reaction" and, if it was, would be a breach of the duty of trust and confidence towards the employee. He pointed out that employees frequently felt demoralised by being totally excluded from work and their work colleagues, and that this could be very damaging psychologically. He said that even if the employees are subsequently cleared of the charges, suspicions are likely to linger because the suspension appears to add credence to them.

Case law

The epithet "knee jerk reaction" was borrowed from an earlier Court of Appeal case, Gogay v Hertfordshire County Council [2000] IRLR 703, in which a care worker was suspended while the employer investigated allegations that she had sexually abused a child in her care. The investigation found the care worker had no case to answer. However, her suspension on such a serious charge had contributed to the onset of clinical depression, which subsequently left her unable to work. The Court of Appeal in that case upheld an award of damages for personal injury and the claim that suspension in these circumstances was a breach of contract. The court noted that, even where there is evidence supporting an investigation, this does not mean that suspension is automatically justified.

Suspension...