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Employment Law News
Suspension - A Timely Reminder
We have been reminded by the EAT in Milne -v- Link Asset and Security Company Limited that the suspension of an employee could constitute a fundamental breach of contract by the employer allowing the employee to resign and claim constructive dismissal if not handled properly by the employer.
Mr Milne was employed as a broker and manager. He was suspended prior to a disciplinary hearing and subsequently resigned claiming that his suspension without justification was in breach of the implied duty of mutual trust and confidence.
Amongst other things the employer had not carried out any investigation prior to the suspension and not obtained written statements. The Tribunal, however, found that there had not been a constructive dismissal. Whilst the EAT dismissed Mr Milne's appeal (on the basis that he had not persuaded them that the Tribunal's decision was perverse - a very high standard) the EAT nonetheless noted that many other Tribunals might have found that there was a fundamental breach in similar circumstances.
Comment and Practical Tips
- Suspension should only be used if appropriate, eg to allow the
investigation to be unimpeded where the presence of the employee may make it difficult to interview other employees or check documents; or where there is a possible threat to the business or other employees.
- Suspension is not a punishment it is a neutral act designed to assist the
investigation.
- Alternatives should be considered, for example, moving the employee to
another part of the business.
- There must be reasonable grounds for the suspension.
·- The suspension should be as short as possible.
- The employee should be told that they are being suspended and a proper
letter of suspension prepared.
·- The employee should continue receiving normal pay and benefits during the
suspension.
- There should be a term in the contract allowing suspension and a procedure
for suspension set out in the disciplinary procedure.
If you require any specific advice in connection with the material contained in this bulletin, or on any other Employment Law issues, please contact a member of the Employment Team on 0151 600 3000.
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