top of page
Search
  • RogerKline

Suspension at work, “knee jerk reactions” and “neutral acts”

Seven and a half years ago I drew attention to an important case which helped to clarify the law on suspension at work after several people who had been suspended from work contacted me. https://www.linkedin.com/pulse/suspension-work-breach-duty-trust-confidence-roger-kline/  A recent discussion with a HR friend in local government prompted me to revisit the issue.


Knee jerk reactions

In 2012, the Court of Appeal handed down judgment in the case of Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138. http://www.bailii.org/ew/cases/EWCA/Civ/2012/138.html. It was a case involving two nurses. The highly respected Elias LJ added a “footnote” to his judgment. At para 71 he said:


This case raises a matter which causes me some concern. 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. As Lady Justice Hale, as she was, pointed out in Gogay v Hertfordshire County Council [2000] IRLR 703, 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.”


Having stressed that suspension must not be a "knee jerk reaction" in cases of alleged misconduct, the Court of Appeal then set out factors relevant to any decision to suspend. These included:

  • the likelihood of the complaint being upheld,

  • the risk of a repeat incident

  • the past record of the employee

  • the seriousness of the allegation and

  • any risk that, by attending work, the employee might prejudice an investigation


Five years later a different Court of Appeal added another consideration that


Subsequently ACAS guidance broadly confirmed this approach https://www.acas.org.uk/suspension


Suspension is not a “neutral act”

In the case of Crawford, Elias LJ also noted that


“I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They 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.”


In professions such as medicine or nursing or for senior management where reputation is crucial and a suspension can be career ending whatever the subsequent outcome of a case the considerations set out above.


Inappropriate suspension likely to be a breach of contract

Five years later the Court of Appeal similarly determined that the key question employers should consider is not whether a suspension is a neutral act (it is not) but whether or not there is reasonable and proper cause for it. It made clear that suspension should never be a knee-jerk reaction but rather carried out for legitimate reasons in the circumstances of the case. These reasons should also be evidenced in writing so that the thought process of the decision maker is clear if the decision is challenged at a later date. The Court made it clear that if an employer does not good reason to suspend an employee, this is likely to seriously damage the implied duty of trust and confidence between employer and employee. https://www.bailii.org/ew/cases/EWCA/Civ/2019/322.html


Risk of discrimination

When considering suspension I would suggest employers also consider whether the act of suspension has been consistently applied within the employer, including whether the protected characteristic of the employee might have influenced (unwittingly or otherwise) the decision to suspend compared to other cases within that employer.


Specific NHS principles relating to the implementation of suspensions/exclusions

The NHS has specific principles to adopt. In a letter entitled “Learning lessons to improve our people practices” (24th May 2019) following the catastrophic Amin Abdullah case which I commented on extensively at the time   https://www.linkedin.com/pulse/sound-silence-roger-kline/ NHS England/Improvement wrote to all Trust Chairs and Chief Executives as follows:


with respect to any cases currently being considered and all future cases, I would ask you to review the following questions (and, where necessary, take corrective action in response):

  • Is there sufficient understanding of the issues or concerns, and the circumstances relating to them, to justify the initiation of formal action?

  • Considering the circumstances, in the eyes of your organisation and others external to it, would the application of a formal procedure represent a proportionate and justifiable response (i.e. have other potential responses and remedies, short of formal intervention, been fully assessed before being discounted)?

  • If formal action is being or has been taken, how will appropriate resources be allocated and maintained to ensure it is conducted fairly and efficiently; how are you ensuring that independence and objectivity is maintained at every stage of the process?

  • What will be the likely impact on the health and wellbeing of the individual(s) concerned and on their respective teams and services, and what immediate and ongoing direct support will be provided to them? Further, how will you ensure the dignity of the individual(s) is respected at all times and in all communications, and that your duty of care is not compromised in any way, at any stage.

  • For any current case that is concluding, where it is possible that a sanction will be applied, are similar questions being considered?


The letter continued:

Any decision to suspend/exclude an individual should not be taken by one person alone, or by anyone who has an identified or perceived conflict of interest. Except where immediate safety or security issues prevail, any decision to suspend/exclude should be a measure of last resort that is proportionate, timebound and only applied when there is full justification for doing so. The continued suspension/exclusion of any individual should be subject to appropriate senior-level oversight and sanction. https://i.emlfiles4.com/cmpdoc/9/7/2/8/1/1/files/56794_letter-to-chairs-and-chief-executives-24-may-2019.pdf


These are good principles. so I am always surprised when public sector organisations do not appear to fully understand or apply them.

30 views0 comments

Recent Posts

See All

コメント


bottom of page