Advice for managers about suspending an employee for bullying

What to consider when suspending a member of staff for bullying

Suspending an employee for a perceived act of wrongdoing or for gross-misconduct is a big step to take. Very often a decision to suspend is made before an investigation takes place. Even though suspended employees are usually retained on full pay throughout a suspension term, the decision-maker is usually a line manager who has acted unilaterally, without first consulting with the HR department and/or without seeking legal advice. In that circumstance, the person who made the decision to suspend may be lack employment law and corporate risk knowledge. He or she may even be overwrought or emotional about the circumstances surrounding the issue of concern. A new term describing suspension under these circumstances is referred to below. It’s called ‘a knee-jerk suspension’ and it is unlawful on a number of levels.

Suspension should never be a ‘knee jerk’ reaction. An employer should look at their disciplinary policy and consider the alternatives – such as a caution or an informal or formal warning. Suspension ‘in the heat of the moment’ can cause irreparable damage to the employer-employee relationship.

Often, surprises are sprung on the employee as they are only told of the decision to Suspend at the time of the action. They have no time to prepare themselves for what follows and this, usually, includes being asked to return company property before they are locked out of the IT system and escorted off the premises. Colleagues observing will likely jump to conclusion. Clients may even be notified of the Suspension. All of the above will impact, in some way or another, on the professional reputation of both the employer and the employee in question. Sometimes, the damage is irreparable.

The act of Suspension is, without doubt, extremely serious.

Breach of Confidence

Suspending an employee can be found to be a breach of the implied term of trust and confidence between employer and employee, entitling the employee to resign and claim constructive dismissal. This is especially so when a later investigation concludes that the perceived wrong-doing was minor and could have been remedied some other way.

In a true case in 2019 a highly valued, senior, employee working in the Public Sector was suspended in error. She went into shock and became extremely unwell. When the CEO of the organisation realised what had happened, steps were taken to try to persuade the employee to return to work immediately. The employer said, in writing, that the employee was a highly valued employee, an asset to the business, with a most promising career ahead of her. However, the damage had been done. The suspended employee felt she could no longer trust the team she worked with.

This case resulted in the employer not only admitting their mistake but they also engaged in settlement talks to compensate the employee for their actions and for her loss of career. It was an extremely expensive mistake, as it turned out.

Case Law related to suspending staff

To make the case for a wrongful suspension relying on Case Law, we draw your attention to the following cases.

In Gogay v Hertfordshire County Council (2000) IRLR 703, the Court of Appeal awarded substantial damages for psychiatric injury to a case worker at a children’s home, who had been suspended because of allegations of sexual abuse.

In Agoreyo v London Borough of Lambeth (2017) EWHC 2019, the High Court held that the suspension of a teacher following allegation she had used un-reasonable force on two children with ‘challenging’ behaviour, amounted to a breach of the implied term of trust and confidence.

London Borough of Lambeth did not appear to have a proper procedure for dealing with the allegations on the table at the time. The employer simply adopted the suspension approach as its default position – in other words, a ‘knee-jerk’ reaction.

The High Court was critical of the employers’ failure to consider alternatives to suspension or to consider the employees version of events before proceeding with suspension. It was also said that the suspension of a qualified professional (ie: a teacher) could have an adverse and permanent effect on her future career.

A separate Claim:

Liability for the employer does not end here. The House of Lords ruled in Eastwood v Magnox Electric Plc (2004) IRLR 732 that financial losses flowing from suspension, such as loss of reputation, can be claimed separately from any claim for unfair dismissal.

In Edwards v Chesterfield Royal Hospital NHS Foundation Trust (2011) IRLR 58, the Supreme Court confirmed that suspending an employee can give rise to a separate claim.

Neutral Act

Suspension is not a neutral act either. In Mezey v South London and St. George’s Mental Health Trust (2010) EWCA 293 the suspension was not deemed to be a ‘neutral act’. It changes the status quo from ‘work’ to ‘no work’ and inevitably cast a shadow over the employees competence. When colleagues start to gossip and customers learn about a suspension, the damage is done. There is no way back for the employee in question. In Japan this is described as ‘loss of face’.

The question surrounding whether the act of suspending an employee is neutural, or not, is echoed in both: Algoreyo v London Borough of Lambeth (2017) EWHC 2019 (QB) and Crawford v Suffolk Mental Health Partnership NHS Trust (2012) IRLR 402.

Policy statement versus action

Most Corporate Policy statements say; ‘Suspension should only be imposed following the completion of a risk assessment’. That said, risk assessments at the time of the suspension are very rarely carried out. Employers are warned against subjecting employees to suspension without a most careful consideration and a genuine and reasonable belief that the alleged wrongdoing was sufficiently serious enough to warrant suspension from workplace.

Consider the alternatives before suspending. If you really feel you need to suspend an employee, ensure it is for a very brief period of time. Always, consider alternative penalties such as a caution or a temporary relocation, while you investigate matters. Simply, remove the risk of further misconduct while you are investigating – don’t necessarily remove the employee from the workplace altogether.

Behaviour pattern: Was the alleged inappropriate conduct an isolated incident or does it follow a disturbing pattern of behaviour. Indeed, has the employee been cautioned in the past.
Deliberate or Malicious: Was the said conduct a deliberate and/or malicious act and is there a risk of further, irreparable, damage to the organisation as a whole.
Crime: Was the alleged wrong-doing a potential crime or violent or threatening in any way.
Risk to others: Are other employees at risk (consider your duty of care towards them).
Bullying & Harassment: Has the employee in question been accused of bullying or harassment and is that allegation being investigated by someone independent.
Risk to the business: Does the alleged conduct present ongoing risk to the business in any way.
Risk to relationships: What would the risk be to the working relationship if the employee was suspended. Consider whether the working relationship has broken-down as a result of the employees’ behaviour.
Risk to an investigation: Would the presence of the employee in the workplace jeopardise any internal investigation process.
Potential outcome: If the inappropriate conduct was proven, might it result in summary dismissal.
Alternative remedy: Would an alternative and less serious penalty be more appropriate.

You should not only consider these points carefully when you assess the situation but you need to be able to justify your decision to your legal team and to the employee in question.

Risk Assessment

To properly assess the risk you will need to consider a number of factors including whether, or not, the conduct was a one-off, whether it is easily proven based on evidence, whether it was deliberate and/or whether it is likely to be repeated. Consider also whether there is a threat or risk to others, to the business or to the reputation of the business. Document the risk assessment process. Importantly, consider the following ten points;

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