An employment tribunal case of mine from back in 2010 illustrates the risks of suspending an employee without being cautious. The employer could have avoided the whole situation with a little more thought and a better understanding of the legal issues.
Suspending employees is not a neutral act
Many employers think that sending someone home is neutral. Letters often state that the suspension is not a disciplinary sanction and managers can think this is enough to make the suspension similar to ‘garden leave’. But in some cases, particularly those where professional reputations are at stake, the mere fact of a mismanaged suspension can justify an application for an injunction forcing the employer to climb down. A professional person may become so stigmatised by suspension that their career may be ruined.
In Mezey v South West London and St George's Mental Health NHS Trust the Court of Appeal clearly disapproved of the Trust’s assertion that suspension was neutral and Ms Mezey obtained an injunction from the High Court stopping it.
Suspension can also be a constructive dismissal
The Court of Appeal found that suspension can have serious consequences: "at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean it cannot be done, but it is not a neutral act."
A suspension could breach the implied term of trust and confidence and written terms as to how procedures will be handled. This is a classic basis for an employee resigning and claiming constructive dismissal.
Is there proper cause for the suspension?
Where there is a very serious situation such as a risk to clients or to the organisation, and provided suspension is monitored and handled sensibly, employers should take comfort from the precise wording of the implied term of trust and confidence by which an employer must not:
". . . without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee"- the established test referred to in the famous case of Malik v BCCI.
If there is a very serious situation, which needs to be investigated employers should explain the reasons for the suspension and the cause of it.