What rights does an employer have to suspend an employee in the UK?

During an investigation into an allegation of misconduct against an employee, an employer may wish to suspend the employee from work if there is, for example, a potential threat to the business or other employees or individuals, or where it is not possible to conduct a proper investigation if the employee remains at work. However, does the employer always have the right to suspend?

Is the employer contractually entitled to suspend?

Where there is no express contractual right to suspend, the employer may still be able to do so if there is no implied right to work. Where there is an implied right to work, suspension could be a breach of contract.

The right to work might arise, for example, where the employee would otherwise be deprived of the opportunity to earn remuneration such as commission, or where there is a need for the employee to exercise their professional skills frequently.

In view of the uncertainty about whether there may be an implied right to work, it is safest from the employer’s point of view if there is an express contractual right to suspend in particular circumstances which clearly sets out the method of calculating pay during the suspension.

When will suspension amount to a breach of the implied term of trust and confidence?

Even where there is an express contractual right to do so, suspending an employee may amount to a breach of the implied term of trust and confidence. The employer needs to be sure that it has reasonable grounds to do so in order to avoid breach of contract in this way, and what is considered to be reasonable will depend on the particular circumstances, such as the seriousness of the allegations and the impact which suspension would have on the employee.

A recent case illustrated the risk of suspending an employee as a “knee-jerk” reaction to an allegation without considering whether it could be avoided. In the case, allegations were made against an experienced teacher that she had used unreasonable force towards a pupil who exhibited particularly challenging behaviour. In the letter to the employee, the suspension was stated to be necessary “to allow the investigation to be conducted fairly”. The employee challenged the legality of her suspension as being a repudiatory breach of the implied term of trust and confidence.

The court found that before suspending the employee, the employer had made no attempt to hear her version of events or to consider any alternatives to suspension. In addition, the suspension letter did not explain why it was necessary in order to carry out a fair investigation. These facts led the court to conclude that suspension had been a “knee-jerk reaction” and therefore was in breach of the implied term of trust and confidence.

The case demonstrates that an employer must take great care when considering whether suspension is the only option when investigating allegations of misconduct, and should document its reasons for deciding that suspension was necessary in the circumstances. In particular, in the case in question, the employer’s overriding duty to protect children could not be relied upon as the reason for suspension when the stated purpose of the suspension was to ensure a fair investigation.

Does an employer have to pay the employee during suspension?

Unless there is a clear contractual right to do so, the employer has no right to suspend the employee without pay and must therefore pay full salary and benefits whilst the employee is suspended.

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