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Craig Rajgopaul on suspending employees

EAT decisions holding that an Employment Tribunal has impermissibly substituted its own views for that of the employer in unfair dismissal cases continue to be overturned in the Court of Appeal in 2012.  In two such recent cases different divisions of the Court of Appeal gave important guidance on the pitfalls of (in the first case) suspending, and (in the second case) not suspending employees during misconduct investigations.

Crawford v Suffolk Mental Health Partnerships NHS Trust [2012] IRLR 402 involved nurses who worked on a ward where patients had mental illnesses.  The Trust suspected that two nurses had used an unauthorised restraint method on a patient, characterised this as an “alleged assault” and suspended them from duty whilst investigating the allegations.  After restoring the Tribunal’s decision that dismissal was outside the range of reasonable responses in the circumstances, Lord Justice Elias gave the following strong warning to employers:

“It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established … even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is …

 [employees] will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.”

Graham v SoS for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903 concerned a long-serving employee in a Jobcentre Plus accused of providing job search assistance to an “acquaintance”, and of allowing the acquaintance (for a brief period) access to her work computer.  Rather than suspending Ms Graham on receipt of the allegations, the DWP sent her to another site to carry out similar work, where she continued to have access to the computer system.  That, the Court of Appeal held, did “not fit easily” with the dismissing officer’s conclusion that he would consider “any ongoing working relationship and trust impossible”.  The Tribunal was entitled to take that disconnect into account in deciding that dismissal was outside the range of reasonable responses.

So what should employers do?

Many employers will take the view that the risk of an employee suspected of gross misconduct crying “breach of trust and confidence” is significantly outweighed by the risk of a Tribunal finding that dismissal was outside the range of reasonable responses because the employer did not take the allegations seriously enough to suspend.  However, employers should always record their reasons for suspending, bearing in mind that the record may well be scrutinised by a Tribunal, keep suspensions under review, and also record the reasons for continuing/discontinuing any suspension.
  
Related link:  Profile of Craig Rajgopaul
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