When suspension goes wrong
Deciding to suspend an employee should be carefully considered as the implications further down the line can be significant if you get it wrong.
Suspending staff has been in the news recently following a decision by the High Court to overturn the suspension of Professor Jahangiri by her employer, St George’s Hospital. She was suspended pending an investigation into allegations against her. Professor Jahangiri cited a lack of evidence for her suspension, combined with being treated as a scape goat for wider failings in the department when taking her case to the High Court. Critically, she also claimed that in her highly specialised field of expertise of cardiothoracic surgery, a break of more than two weeks would diminish her skills and risk the lives of patients. The High Court agreed that there was no basis on which to suspend her, and has overturned the suspension allowing her to return to work during the investigation.
This case acts as a timely reminder of the important factors to bear in mind before you decide to suspend an employee.
Suspension is not a neutral act
Another recent decision from the High Court involving the suspension of a teacher (Agoreyo v. London Borough of Lambeth) made it very clear that suspension is not always a neutral act, particularly when it relates to qualified professionals with a vocation. This is because it is often difficult to return from suspension without some damage to your reputation, even if the allegations are unfounded. Employers must think very carefully before taking a knee-jerk reaction to a situation or incident.
The impact of suspension on the organisation
The allegations that prompted Professor Jahangiri’s suspension were not as a result of her skills or ability to perform her role, and neither had there been previous concerns about her ability. The suspension, however, meant that potentially life-changing operations were cancelled, and her trainees were missing out on vital education and experience as they were unable to train properly during her suspension.
The act of suspension could be disproportionate to the allegations and have a bigger negative impact on the employer and other staff. It is always worth considering the wider impact suspension may have, whether you can cover the suspended employee’s role, or indeed, whether suspension is the most appropriate course of action or if there is an alternative to suspension.
The impact of a wrong decision
The High Court ruling overturned Professor Jahingiri’s suspension and allowed her to return to work. The High Court did not make judgment on the ongoing investigation; however, depending on the outcome of the investigation, it does open the doors to the threat of litigation further down the line.
Getting suspension decisions wrong could allow the employee to resign and claim constructive unfair dismissal with the employee arguing the employer has acted in breach of the implied duty of mutual trust and confidence between the employer and the employee.
Given the already negative relationship that is being reported by the media between Professor Jahingiri and St George’s Hospital, it remains to be seen whether this is a course of action she will take.
The message for other employers is to think before you act and make the right decision in the first place to ensure you minimise the risk of a costly exit and successful claims later down the line. So, what should an employer considering suspension be thinking about?
Here are some top tips:
- Consider the impact of suspension and any alternatives to it, such as reassigning the employee to another area of the business for a limited period or putting them on a special project. Think creatively – suspension should not be a knee-jerk reaction.
- Wherever possible, speak with the employee first, and consider confidentially other opinions if you feel it’s appropriate, before making a decision to suspend, to understand their initial take on what has led to a decision to consider suspension. Do they perhaps have information that would make you think differently about them continuing in their role pending investigation?
- Identify whether there is an express power to suspend the employee in the employment contract. Although you will still need to think through whether suspension is the right course of action, it will be easier to defend the decision if you have a contractual right to suspend.
- Check what your employee handbook says about the circumstances in which suspension may be appropriate, and make sure that you follow your procedures.
- If you do decide that suspension is the most appropriate course of action:
- consider what you can say on a neutral and confidential basis to the employee’s colleagues and clients. If possible, agree the response with the suspended individual;
- make sure the employee is kept informed about the investigation process regularly; and
- review whether suspension remains appropriate on an ongoing basis. Even if suspension was originally justified, an employee may subsequently claim that length of time suspended has caused them damage and would entitle them to claim there has been a breach of mutual trust and confidence.
Ultimately, we would advise any employer considering suspension to seek expert advice before making the decision. As each situation is unique, there is no standard response and an employment lawyer will be able to guide you through the process to ensure you reach a decision that minimises the impact on your business, and reduces the risk and cost of any claims against you.
Pam Loch is Managing Director of the Loch Associates Group and Managing Partner of Loch Employment Law. To contact Pam, visit www.lochassociates.co.uk, or call 0203 6675 400.