Suspending senior employees - a possible elephant trap
Posted on 12th April 2022 at 13:53
No, it’s not necessarily the risk of unfair dismissal, whether actual or constructive. A sensible employer will always be poised to lift a suspension if new evidence calls for this, and to do so before irreparable damage is caused to the employment relationship. However, there may be scope for the suspended employee to strike back straight away, and apply for an injunction to have the suspension lifted.
Far fetched? Not at all. In the case of Harrison v Barking, Havering & Redbridge University Hospitals NHS Trust, the suspended employee Caroline Harrison – the deputy head of legal service – had supposedly given the Trust cause for concern about the quality of her casework, which she carried out on an autonomous and largely unsupervised basis. She was suspended almost immediately after returning to work from a prior suspension lasting almost three months. Two weeks after the second suspension was imposed, she sought an injunction to permit her to return to work and perform most of her normal duties. The Trust, in turn, told her that it would lift the suspension, but only to let her return to supervised duties until an internal investigation was complete. This was unacceptable to her, arguably comprising a demotion in all but name.
The court had to decide whether the Trust had acted in a manner that amounted to a breach of the implied duty of trust and confidence that forms the cornerstone of any employment relationship. Curiously, this is most often argued as grounds for claiming constructive dismissal. Here, Ms Harrison was arguing the point not only in order to keep her employment contract alive, but also to force her employer to let her perform it.
The court found the Trust’s actions to be disproportionate, unjustified, and lacking in reasonable and proper cause. It took particular notice of the effect upon Ms Harrison’s health and professional reputation, and the likelihood that returning to normal duties would enable her to regain her health. The balance of convenience favoured the grant of an injunction allowing her to return to work, even when only two weeks remained before the Trust’s internal investigation was scheduled to be completed.
What lessons are to be learned? One of them is the importance of “last resort”, in other words whether alternatives to suspension have been properly considered. The Trust could have chosen to restrict Ms Harrison’s duties instead (risking the lesser evil of a grievance) but chose not to do so. It then placed the cart before the horse by raising criticisms of her work only after the decision to suspend.
Over and above this – a particularly significant matter in the case of seniors and professionals – the Trust appeared to have taken little or no account of reputational damage. Even where a suspension might ultimately lead to a return to work without stigma, the “mud will stick” factor will never be easy to erase altogether, especially when a suspension becomes prolonged.
Ultimately, the reaction of Ms Harrison – and her success in court - may still be very much an exception. Court action is costly, and an unreasonable suspension may be more likely to provide grounds to claim unfair actual or constructive dismissal. However, if the suspension has been ill thought out, a threat of an application to have it lifted immediately may force the issue when the employer least expects this. Or, indeed, it may lead to a quicker and more favourable settlement for the employee if there is truly no going back.
Interested to know more, whichever side of the argument you are looking to make and whichever side of the desk you are sitting on? Get in touch via 0212 325 5402 or firstname.lastname@example.org .
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