When might it be a bad idea to suspend an employee ahead of a disciplinary process or investigation? Or, from the other side of the divide, when might a suspended employee be entitled to conclude that the exit door is firmly open and the mind is firmly closed?
Sometimes, suspension is a matter of plain common sense. If a fight has broken out in the workplace, or if there are clear signs of theft or sabotage, it is only right and proper to diffuse the heat or preserve the scene. As the ACAS Code confirms, suspension may be necessary in gross misconduct cases (subject, of course, to proof), or where there are risks to evidence or property, or responsibilities to others. Keep it short, paid and under review, and there should be no scope to allege that the process is tainted or that dismissal was a foregone conclusion all along.
And yet we continue to hear of cases where an employee is suspended almost on a whim, as if it is a natural element of a disciplinary process or investigation, despite the absence of heat, exposure or vulnerability. Suspension, for instance, where a middle ranking or more senior manager has simply checked up on previous precedent when negotiating an exit package, or argued intemperately with a subordinate outside the workplace, or fallen out of favour with a controlling boss.
“Oh, but we tell them that suspension is not considered a disciplinary action. Just as the ACAS Code recommends.” Hmm. How much use is that going to be for someone who has just been escorted from the premises with team members looking on, or who mysteriously disappears from the internal diary amid rumours of mystery illness or domestic problems that have not a grain of truth behind them?
There is a relative lack of legal authority about unfair suspension, perhaps only because the fairness or otherwise of the dismissal will be more relevant in the minds of the higher courts and tribunals. However, one key analysis stands out from Lord Justice Elias’ judgment in Crawford v Suffolk Mental Health Partnership  EWCA Civ 138, where the employee was suspended following allegations of inappropriate restraint methods when dealing with a difficult and vulnerable patient: –
“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….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. 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.”
Strong words. How much impact, however, would they have on a manager who consciously decides to suspend an employee in the hope that a severance package offered in parallel will suddenly become more attractive? Or one who suspends and deliberately prolongs the investigation in the hope that the employee will eventually conclude that there is no way back and that the lesser evil is to look for another job and quit?