MOrsel: When is suspension justified?

When an employee is accused of wrong-doing, suspension is often a first consideration. Used correctly, the power to suspend allows an employer the ability to swiftly and effectively remove the employee from the situation and prevent any further damage. It gives valuable time and space for the issue to be investigated and, where appropriate, legal advice to be obtained.

Suspension is, however, deceptively high risk. The employer which suspends automatically, without separating the alleged wrong-doing from the reasons for excluding the employee from the workplace, will risk a fundamental breach of the implied term of trust and confidence, paving the way for a constructive dismissal complaint and claim for damages.

There are longer-term considerations too. Suspension, unsurprisingly, is a distressing and embarrassing experience for an employee, causing ruptures to performance and team dynamics from which the relationship may not recover. If allegations are later dropped, colleagues may struggle to accept the employee's innocence after seeing them excluded for an extended period.

So when is an employer justified in suspending an employee without breaching the implied term of trust and confidence? A recent case in the English Court of Appeal, London Borough of Lambeth v Agoreyo, provided updated guidance.

Reiterating the principle that an employer can suspend where it has reasonable and proper cause for doing so, the Court ruled that suspension does not need to meet a threshold test of necessity. The Court noted that it is not relevant or helpful to focus on whether suspension is a "neutral act". Instead, the question of whether an employee's suspension was in breach of the implied duty of trust and confidence requires a factual assessment: namely, given the allegations against the employee, did the employer have reasonable and proper cause to suspend?

It is important to note that these comments from the English Court of Appeal will not be binding in Guernsey or Jersey, but they are likely to be considered persuasive by a Channel Islands judge considering the same issues. As such the key to a lawful suspension is to have a clear, objective rationale for the employee's suspension, linked to the alleged wrong-doing. For example:

1. Is there is a risk of harm to colleagues or clients if the employee remained at work?

2. Would the employee's continued presence at work risk impairing the investigation?

Having identified that rationale, the employer should ensure its reasoning is properly documented in a contemporaneous risk assessment. A brief summary should then be communicated to the employee as part of the suspension notification.

For more information in respect of employee suspension issues, please get in touch with a member of the Guernsey or Jersey employment team.