Should you suspend pending a disciplinary hearing?

ArwenMakin_ESPLaw
Senior solicitor
ESP Law
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Employers often suspend employees pending a disciplinary hearing. This can either be to keep them out of the way whilst the investigation is carried out, or because the employer is concerned about the potential for acts of misconduct to take place in the meantime. Most employers assume that provided that the employee is still paid during the suspension, this is without risk.

However, the recent case of Agoreyo v London Borough of Lambeth [2017] EWHC 2019 highlighted that in some cases, suspension can amount to a breach of the implied term of mutual trust and confidence. In that case, Ms Agoreyo, a teacher, was suspended following allegations of using force with two challenging children. The High Court held that this was a repudiatory breach of contract by the employer, entitling Ms Agoreyo to resign. The employer had not considered whether there were other alternatives to suspension or Ms Agoreyo’s own responses to the allegations.

So what do you need to bear in mind if you are considering suspending an employee?

You should think about the following issues and document any decisions reached:

Is there any doubt about the genuineness of the allegations? If the matter to be investigated is a complaint by a colleague or a customer, could the allegations be vexatious? Could the complainant be mistaken or is there any other doubt about the validity of the complaint?

What is the employee’s response to the allegations? Is their response convincing? Does it give you cause to doubt the validity of the allegations?

How seriously could suspension impact on the employee and their future career if the allegations are not subsequently upheld? Are they likely to be 'tainted' by the suspension?

Is there any risk to the business, their colleagues or customers in not suspending the employee? Are the allegations about bullying or discrimination? Might it be appropriate to suspend the employee to prevent any more incidents if the allegations are in fact correct?

Are there any alternatives to suspension? Could the employee be closely supervised? Could they move to another department temporarily? Could they report to someone else as an interim measure?

Is the investigation likely to be hindered by the employee being in the business whilst it is carried out?

Allegations should always be investigated, but the question is whether it is absolutely necessary to suspend the employee during that investigation. Suspension can have serious ramifications for employees, particularly in professional roles such as teachers, doctors, nurses, lawyers and accountants.

If a decision is taken to suspend, this should be confirmed in writing to the employee. Agoreyo confirmed that the letter should set out who has made the decision, the fact that alternatives have been considered but disregarded for specified reasons, and the reasons why suspension is regarded as reasonable and necessary.

Our template 'Disciplinary Suspension Letter SL5.02' has been updated to address this guidance and is now available on our Customer Zone

About ArwenMakin_ESPLaw

Arwen Makin

After studying law at Cambridge University, I trained at leading national law firm Mills & Reeve, qualifying into their employment team in 2002. I have extensive employment law experience, gained through advising both employers and employees on a wide range of issues, across an array of sectors – including but not limited to finance, education, hospitality, transport and retail. This diverse experience means I am ideally placed to provide advice in relation to professional conduct and regulatory matters.

I am now a senior solicitor at ESP Law, part of ESP Group – a very different employment law firm and HR consultancy business, with our own in-house legal and HR experts. Taking pride in our reputation for delivering sensible, straight-talking and practical advice – at the same time as being approachable and supportive – I am passionate about the way ESP works with its customers. By building on trusted relationships and providing prompt support at the earliest stage of any issue, we help ensure that sound commercial decisions are taken.

The vision for our business was to deliver an exceptionally personal, yet cost-effective service that truly meets the evolving needs of modern and forward-thinking HR teams and their organisations. I’m lucky to be among a team of very talented employment lawyers who work hard day in, day out, to make this vision a reality.

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