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28 February 2020

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Suspension – it is really appropriate?

Posted by: Bethanie Bailey

In cases where serious misconduct or poor performance is alleged an employer may find it helpful to suspend an employee pending further investigation. It is important however that this is not a knee-jerk reaction and that an employer can justify any decision to suspend an employee.

Facts of the case

In the case of Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust, the Court of Appeal was asked to grant an interim injunction to prevent the Trust from continuing to suspend a solicitor within its legal department.

Mrs Harrison is the Deputy Head of Legal Services for the Trust and she was suspended as a result of concerns regarding her handling of a clinical negligence case against the Trust. She was escorted from the premises and her access to work emails was withdrawn. The Trust wrote to Mrs Harrison to confirm the terms of her suspension and in the letter they suggested her suspension was likely to last for two weeks although the period could be extended.

Following her suspension Mrs Harrison began to suffer from stress and she was prescribed anti-depressants. The Trust subsequently agreed that she could return to work albeit on limited duties. Mrs Harrison refused to return on reduced duties as she argued this amounted to a demotion and she was immediately suspended again by the Trust for failing to comply with a lawful instruction.

Mrs Harrison applied to the court for an interim injunction to allow her to go back to work to perform the majority of her duties.

Decision of the court

To succeed with her application the court needed to be satisfied that Mrs Harrison had an arguable case pending a full trial. In reaching its decision the court considered the reasons for Mrs Harrison’s suspension and whether the Trust’s decision to suspend her amounted to a breach of the implied duty of trust and confidence.

The court granted the interim injunction allowing Mrs Harrison to return to work on the following grounds:

  • The Trust’s concerns were limited to her handling of clinical negligence cases and not her wider more general practice.
  • It was disproportionate to suspend her from all of her duties given the risk the Trust had identified.

What can you learn from this case

This case is a really useful reminder of the key issues to consider before deciding to suspend someone. Suspension is a serious step and employers need to be able to demonstrate that they have given careful consideration to whether it is appropriate in the circumstances and what, if any, other alternatives to suspension they have considered. As this case demonstrates, where an employer fails to do so they risk breaching the implied duty of trust and confidence which leaves them vulnerable to potential constructive unfair dismissal claims.

So what do you need to think about when considering suspension?

  1. Check whether there is a contractual provision in the employee’s contract that provides you with an express right to suspend.
  2. Pro-actively consider alternatives to suspension in order to demonstrate that it was not a knee-jerk reaction. Document your thought process – what alternatives did you consider? Why were they not appropriate?
  3. Discuss the matter with the employee before making a decision. This will make the decision making process more balanced.
  4. If the employee is suspended consider the effect this will have on their reputation and how best you can limit any negativity. What will you tell other employees?
  5. Whilst suspended the employee needs to have confidence in the investigation & so there needs to be good communication.
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Bethanie Bailey - Marketing and Business Development Manager

To discuss how Glaisyers can assist you contact Bethanie Bailey on bethanie.bailey@glaisyers.com or via 0161 832 4666.

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