Beware knee-jerk suspension of workers
Jack Boyle says employers should be cautious about supposed ‘easy option’
Media coverage of two recent instances of pilots being suspended from their duties caught my attention. One case concerned a British Airways pilot who was suspended having allegedly left the cockpit door open during a flight from London to New York. Members of his family were said to be on board, and this was to allow them to watch him in action. Anti-terror laws implemented after 9/11 make it a requirement for cockpit doors to be closed during a flight to prevent unauthorised access.
The second case involved an EasyJet pilot reportedly witnessed wandering, drunk and naked, through communal areas of a high-end hotel. He was due to fly a return flight to Gatwick some 36 hours later, but was suspended before he could do so.
Suspending an employee is a legitimate tool for employers, most commonly used when investigating allegations of misconduct. However, it is not appropriate in all cases. Employers should be careful to avoid a knee-jerk reaction or adopt an approach of suspending in every case of alleged misconduct.
The key question for an employer to ask, when considering whether to suspend, is to establish whether suspension is necessary. For example, could the employee’s continued presence in the workplace hinder the investigation? Is there a risk the employee will destroy evidence or intimidate witnesses? Could the employee harm the wider business (or themselves)?
ACAS introduced a guide to suspension in 2022 which encourages employers to explore alternatives before implementing a suspension. Examples include moving the employee to another department, having them work from home, removing them from certain tasks or excluding them from accessing certain systems. To show that a meaningful balancing exercise has been conducted, employers would be wise to create a paper trail documenting the factors weighed up when deciding to suspend.
Suspension is often considered a low-risk decision for an employer to take (in contrast to, say, a dismissal). While sometimes described as a “neutral act”, suspension should not be taken lightly, not least because of the consequences it can have on the employee. This is particularly the case if the allegations are sensational with reputational consequences (after all, there is “no smoke without fire”).
There are cases where employers are found to have constructively dismissed employees (i.e. breached the employment contract) over hasty or poorly-handled suspensions. One case concerned a suspension over sexual abuse where there was no evidence to substantiate the allegation. Another case was successful due to the employer’s failure to review and lift the suspension over time.
A suspension should always be on full pay. Ideally, the employer will have the right to suspend under the employment contract before electing to do so. Challenges can arise if there is no contractual right to suspend, and the employee consequently misses out on certain shift premiums or other payments when suspended.
The employee should be advised of the suspension and the reasons for it. This should also be confirmed in writing. A suspension should be kept under review and should also be for no longer than is necessary (keep the employee advised of the progress of the investigation). Employers should emphasise that suspension is a precautionary measure and is not an assumption of guilt.
ACAS emphasises the need to look out for the suspended employee’s mental health and giving the employee a point of contact within the suspension letter is a useful idea. If the employer has any wellbeing tools, these could be highlighted. Over and out.
Jack Boyle is a Partner, Blackadders