When Is Suspending An Employee A Breach Of Trust And Confidence?

Suspension can be a very useful tool for employers. However, in certain circumstances it can amount to a breach of trust and confidence, which would then allow the suspended employee to resign and claim constructive unfair dismissal. The recent case of Harrison v. Barking, Havering & Redbridge University Hospitals NHS Trust (the Trust) has served as a useful reminder that employers need to be careful when making the decision to suspend an employee and to make sure that it is a proportionate step to take in all of the circumstances.

Facts

Ms Harrison is employed as the Deputy Head of Legal Services for the Trust. Her work mainly involves working on inquests, handling claims, providing advice to the Trust and legal teaching. Concerns about her handling of a clinical negligence case were raised. Prior to this, no issues with Ms Harrison's performance of her role had arisen or similar allegations made. The Trust decided to suspend Ms Harrison while an investigation into the allegations took place. Ms Harrison was not given details of the allegations that she was facing at the time of her suspension. Ms Harrison was subsequently signed off with stress and anxiety. As many employers do in these circumstances, the Trust lifted her suspension and she was treated as being on sick leave. Ms Harrison was invited to return to work on restricted duties. She would have been doing largely administrative work and legal teaching, but with no casework. She refused to do so because she considered that to be a demotion and contrary to medical advice from an Occupational Health professional, which was to the effect that a return to full duties would improve her health. As a result, Ms Harrison was suspended again, this time for refusing to obey an instruction.

Ms Harrison sought an injunction permitting her to perform the majority of her duties autonomously while the investigation continued.

The decision

The High Court granted the injunction as it considered that Ms Harrison had strong grounds to argue that the Trust's actions amounted to a breach of the implied duty of trust and confidence. This is because the Trust was unable to show that there was a reasonable and proper cause for suspending her from most of her normal duties. As there had only been an issue raised in relation to a specific type of work, i.e. the handling of clinical negligence claims, suspension from all her normal duties was excessive. The Trust could have simply chosen to stop her from...