One of the most common issues that arises at the outset of a disciplinary investigation is that of whether an employee ought to be suspended pending the outcome of proceedings.
This is an area where useful guidance can be obtained from “The Master of Suspense” himself, Alfred Hitchcock. Those familiar with his films will know how he built up tension in a slow, considered manner, deliberating over the construction of each scene and carefully planning how best to reach a state of suspense. While the suspense in Hitchcock’s films was of a very different nature, there are a number of useful pointers that can be taken when considering suspension in an employment law context.
Firstly, don’t go “Psycho” and rush into any decision. Employers are often criticised by tribunals and courts for having a knee-jerk reaction to suspension where there is no real basis for it. Suspending an employee without good cause can amount to a breach of the implied term of trust and confidence allowing an employee to bring a claim of constructive dismissal, a point recently emphasised by the Court of Appeal in England in the case of Crawford & Another v. Suffolk Mental Health Partnership NHS Trust (paragraph 71 of the judgment provides useful guidance).
In most situations, at the commencement of an investigation employers will only have a “Suspicion” that an employee has committed an act of misconduct. Another good reason not to automatically suspend is to ensure that it cannot be alleged that by suspending the employee, their guilt has already been pre-determined, thus undermining the fairness of the subsequent disciplinary process.
As an employer, you must ensure that the question of suspension is carefully deliberated over of itself. All too often, employers take the decision to suspend automatically where there is a disciplinary case to answer. Proceeding in this manner can often create a risk. Remember: leaving an employee in the workplace does not prevent an employer from upholding a disciplinary allegation once due process has been followed.
In the same way as there would have been no tension at all in “Rear Window” if James Stewart had spied on his neighbour buying a newspaper, employers should not suspend except in the most serious of circumstances. This will only generally be appropriate in cases where there is a threat to the business (e.g. where you need “To Catch a Thief”) or other employees.
It may also be appropriate to suspend an employee where there are grounds to believe they may hinder or interfere with the disciplinary investigation. This may be by way of influencing or intimidating witnesses or by destroying evidence (think Norman Bates pushing victim number one’s car into the lake by the Bates Motel).
Finally (and stretching it slightly!), “North by Northwest” generated an income of $404k when given an initial 2 week release in 1959, showing that suspense pays. Likewise, those employees who are suspended should also continue to receive salary and other contractual benefits in accordance with their terms and conditions of employment.
There will clearly be situations where it is appropriate to remove an employee from the workplace to allow for the disciplinary process to take place. They key thing for employers to do is to ensure that they can properly justify such a decision. This can be done by adhering to the following steps:
- Where you require to deal with a disciplinary matter, always consider suspending the employee as a separate matter of itself
- Review terms and conditions of employment and ensure that they provide a contractual right to suspend pending a disciplinary investigation.
- Carefully review whether there are circumstances which mean suspension is necessary and, if so, ensure that these are recorded
- When suspending, confirm this decision in writing to the employee
- Try and ensure that any period of suspension is kept to as short a period as possible: don’t use suspension as a punishment or short term answer to a disciplinary issue
- Review the need to suspend the employee throughout the process
- Continue to pay the employee in accordance with their terms and conditions of employment.
If in doubt, we will be happy to provide detailed advice and assistance, so don’t hesitate to “Dial M for... Miller Samuel”.
