A U.K. High Court decision, lower court opinions, and recent guidance from the Advisory, Conciliation and Arbitration Service (Acas) highlight the importance of employers paying attention to their suspension policies.
High Court Decision
In August 2019, the U.K.’s Barking, Havering and Redbridge University Hospitals NHS Trust suspended a solicitor in the organization’s legal department over concerns about the way she had handled a medical negligence case. The suspension began publicly with the solicitor escorted off the premises. Though the solicitor’s letter of suspension said that the suspension would most likely last for two weeks, she didn’t return to work until three months later, in November 2019, and only because she began developing severe anxiety and stress related to the continuing suspension. Even then, her duties were limited, and the solicitor considered it a de facto demotion; she refused to agree to her new duties and was suspended again. Then, her case went to court.
The High Court ruled that the solicitor could return to work, and the solicitor voluntarily agreed not to undertake clinical negligence casework until her court case was completely resolved.
“The Trust’s policy and guidelines ticked all the right boxes. It said that temporary redeployment should be considered as an alternative to suspension, that suspension would be for as short [a] time as possible, the grounds of suspension would be reviewed after 10 working days and, if suspension lasted for three weeks or more, the employee would be kept informed of the reasons for continuing and its expected duration,” said Danielle Parsons, an attorney with Irwin Mitchell LLP in London. “But the trust didn’t follow its own policy. Reading between the lines, it looks as though once suspension was proposed, no real alternatives were considered” until after the solicitor complained.
Pay Attention to Protocol
When dealing with suspensions in the U.K., companies and organizations need to pay attention to certain protocols that can keep them out of court.
“In the past, employers have felt relatively phlegmatic about the decision [to suspend], because as long as they complied with the salary and benefits obligations in the contract, they didn’t feel too exposed. … They felt relatively assured there wouldn’t be too many adverse consequences,” said Richard Fox, senior consultant at Kingsley Napley LLP in London. However, recent judicial decisions have demonstrated that companies should think not just about the consequences for themselves, but also about the consequences for employees who are suspended.
“It’s not necessarily a neutral act. So, it can have more consequences for the employee, not just in terms of their job, but in some cases in terms of their career as a whole,” Fox said. “And therefore, employers should consider more carefully whether or not to suspend.”
Acas Releases Guidelines
Acas came out with suggested guidelines around suspension in September 2022 that employers should pay attention to if they are contemplating suspending an employee.
“The new advice from Acas on suspension emphasizes that employers should only suspend an employee if it’s necessary, so, for example, where an employee has been alleged to have committed serious misconduct and there is no other option. Employers shouldn’t automatically decide to suspend an employee without first gathering some initial information about what’s happened, who is involved and how serious it may be,” Parsons said.
“The first thing they’ve got to do is consider why they might need to suspend,” Fox said. “What is the actual reason for their decision?”
How Suspension Affects Employees
Acas also recommends that employers consider the effect on the suspended employee. “If an employer decides to suspend an employee, then they should offer support to them, check in with them regularly and, if possible, offer them access to counseling services,” Parsons said.
It’s to the employer’s benefit to consider how the suspension will be presented within the company. To minimize reputational damage to the suspended employee, the employer should decide what neutral message will be given to other staff—and potentially clients and customers—to explain the person’s absence, Parsons said.
“A good option for both parties is to refer to the individual taking personal leave, because it implies reasons which do not need prior notice or explanation,” she said.
Consequences of Tribunal
If the employee takes a case to an employment tribunal, there can be consequences for both the employer and the employee. Judgments in employment tribunals are now publicly available online.
“I don’t think people thought enough about the consequences of the judgments becoming publicly available in such an accessible way,” Fox said. “Your reputation can be at stake if you bring a claim before a tribunal and the judge refers to the evidence in their judgment.”
A best practice is for employers to try to comply with the Acas recommendations, which can help create a positive work environment even in the face of suspensions and also help employers win potential future cases that come up in front of a tribunal.
“I would suggest that the employer documents their decision-making process. Otherwise, if you get to tribunal, you are having to justify what you did with potentially little corroborative evidence to support you,” Fox said. “But if you’ve got something contemporaneous in writing, showing the steps you’ve taken, I think that can be extremely helpful.”
Katie Nadworny is a freelance writer in Istanbul.
