Suspension pending an investigation is OK, isn’t it?
No - not necessarily. A recent case that ended up in the High Court found that the London Borough of Lambeth had acted in a “knee jerk” manner when it suspended a teacher following allegations of using excessive force, and that as a consequence it had breached the implied terms of mutual trust and confidence.
In this particular case the teacher worked with children who were known to exhibit challenging behaviour. An investigation into two of the allegations had concluded that she had not used more than reasonable force, but the Executive Head suspended her saying that it was a “neutral act” and that it was not a disciplinary sanction. However:
• The teacher was not asked for her version of events before being suspended;
• the initial investigation concluding that the previous allegations were unfounded was overlooked;
• no alternatives to suspension were considered; and
• there was no explanation given as to why an investigation could not be carried out fairly without the teacher being suspended.
The court concluded that the suspension was more of a routine reaction and not one that had been carefully considered. So how should you deal with a situation like this to ensure that you minimise the risks involved?
Consider all the circumstances and record your answers to the following questions to ensure that you can show, if challenged at an appeal or at Tribunal, the reasoning for your decision:
• Would the employee’s presence impede an investigation?
• Is there a risk of the employee interfering with witnesses or evidence?
• Is there a risk to the safety of other staff, customers or service users?
• Are there suitable alternatives?
• Is suspension reasonable in the circumstances?
Suspension may be the right course of action for the situation in question, but always consider possible alternative action. Any letter to an employee notifying him/ her of a suspension pending an investigation should also state the reasons why. Just saying it is a “neutral act” is no longer sufficient. And of course if you can get the investigation done quickly, this will minimise the period of time the employee is off work and reduce the risk of a claim of a breach of implied mutual trust and confidence.
If you need any assistance with any similar situations, please get in touch for advice on how to handle it.
Posted on 02 Oct 2017