Suspending employees – not always a neutral act

Caroline Cobain
Legal Director
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Employers must be careful to avoid taking any action against, or doing anything in respect of an employee that amounts to a breach of the implied term of trust and confidence that exists between an employer and employee.

A recent case looked at this implied term in the context of whether an employer, a local authority, breached the implied term of trust and confidence by suspending an employee before inviting her to respond to allegations that had been made against her. There was also no evidence in the case of the employer having given any consideration as to any alternatives to suspension in the particular circumstances (i.e. considering whether suspension was the only option available to it). The employee resigned in response to having been suspended in that situation.

When the case was considered recently by the High Court, it was confirmed that employers need to remember that suspension is not a ‘neutral act’ (not, at least, when dealing with professional vocations, such as teaching).

The judgement is a timely reminder that ‘knee-jerk’ suspension by employers, where employees are suspended without preliminary investigation and without due consideration as to whether suspension is actually necessary in the circumstances (and if so, for what purpose) must be avoided. Such suspensions may, in fact, result in the employer facing a claim by the employee that the suspension amounts to a repudiatory breach of contract, perhaps founding a claim for constructive unfair dismissal if the employee subsequenly resigns in response to that breach.

The full judgement can be reviewed here: http://www.bailii.org/ew/cases/EWHC/QB/2017/2019.html. However, if you require assistance in relation to suspending or disciplining employees, or we can assist with any other employment law matter arising, please do not hesitate to contact a member of the team on 0141 331 5150.

Topics: High Court