Is suspension a “neutral act”?
So often employers suspend an employee with the justification that suspension is a “neutral act”, but a recent case * should act as a reminder to all that it is not.
Whilst suspension of an employee is permissible, an employer must ensure that they have reasonable and proper cause to suspend to avoid committing a repudiatory breach of the employee’s contract of employment.
There is an implied term of mutual trust and confidence between an employer and employee. This means that an employer must not conduct itself in a manner likely to destroy or seriously damage that relationship of trust and confidence without reasonable and proper cause. An act of suspension can constitute a breach of the implied term where it, by itself or in combination with other acts or omissions, destroys that relationship.
The Court of Appeal has decided that the crucial question to ask in order to establish whether there has been a breach of the implied term of trust and confidence by suspending an employee is whether there had been reasonable and proper cause for the suspension, not whether the suspension was described as a “neutral act” nor whether the suspension was “necessary”. In addition, the court stressed that deciding if an employer’s actions were reasonable depends on the facts of the case and is not a question of law.
So, what should employers consider before suspending an employee? We suggest the following as a starting point:
1) Check whether the employee’s contract actually allows the employer to suspend. Not all contracts expressly allow an employer to suspend an employee and it may not be possible to imply such a right.
2) Don’t suspend an employee solely as a precautionary act to allow an investigation, rather consider the alternatives. An employer should consider the allegations and the employee’s comments on them and any suggested or possible alternatives. For example, it may be possible to move the employee to a different area of the business during the investigation instead of suspending them.
3) Look at each matter on a case-by-case basis. The court has made clear that the question of reasonableness is fact specific. An employer should look at each matter as it arises and consider all of the facts, including the potential damage to the employee’s reputation, to establish if the particular scenario presents reasonable and proper cause to suspend the employee.
4) Don’t suspend as a knee-jerk reaction. The decision to suspend must be carefully considered. It would be prudent to record the considerations made and the reasons for any suspension and justification for its length noted.
Suspension is a last resort. Where an employer feels that suspension is necessary, they must be able to demonstrate that they considered alternatives to suspension and that suspension was the only viable option for that particular employee in that particular case.
* Mayor and Burgesses of the London Borough of Lambeth v Agoreyo ( EWCA Civ 322)