Disciplinary suspension: case study 1

Matthew Briggs of Osborne Clarke continues a series of articles on disciplinary suspension with a case study that looks at a situation in which an employer is considering suspending an employee against whom allegations of misconduct have been made. 

We Care is a highly regarded residential home for the elderly. It prides itself on providing exemplary levels of care for its residents. All staff are expected to comply with the We Care employee handbook, which contains a clear code of conduct and a disciplinary policy that details how the home will deal with disciplinary issues. 

Clive, We Care's night manager, is working his shift when one of the carers asks him to speak to the irate son of Mr Brown, who is a resident at the home. The son is furious about how a carer in Clive's team, John, has spoken to him. He says that he was verbally abused by John and regards his treatment as totally unacceptable. John has worked at the home in Clive's team for six years and has always been one of the most popular carers. He has no disciplinary record. When Clive speaks to Mr Brown's son, he is surprised to hear that John told him to "shut up" and "stop wasting his time" when John was assisting his father to get into bed. 

We Care provides regular training on how to deal with misconduct and Clive is well aware of how seriously the company treats abusive conduct towards residents and visitors to the home.  Therefore, first thing in the morning, he calls Sarah, We Care Group's HR director, for advice. He wonders if, given the seriousness of the complaint, he should suspend John while he investigates the matter. We Care's disciplinary procedure reserves the right for the home to suspend employees on pay while it investigates disciplinary matters and the disciplinary procedure is in progress. Clive's concerns are heightened by recent press interest in poor standards at care homes and he is keen to ensure that We Care is not publicly criticised for its handling of this matter.

Should We Care suspend John?

Although We Care's disciplinary procedure reserves the right for the home to suspend employees pending disciplinary investigations, it needs to be sure that it has reasonable grounds for doing so. It should not suspend John as an automatic reaction to Mr Brown's son's complaints. Before suspending John, Clive should consider if John poses a potential threat to the home's residents, visitors or other employees and whether or not, if John remains at work, this could make it difficult for the company to investigate the incident properly (for example because he might try to influence witnesses or destroy evidence).

In a recent case, Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 CA, the Court of Appeal considered the dismissal of two nurses in connection with allegations of gross misconduct made against them about their method of restraining a patient suffering from dementia. The nurses had been suspended for six months during the disciplinary investigation into the allegations. The Court of Appeal was critical of employers that suspend employees as a "knee-jerk reaction" to allegations of this kind and highlighted that, where an employer takes this approach, suspension will be a breach of trust and confidence. It warned employers to think carefully before suspending as suspension often leaves employees feeling belittled and demoralised by their exclusion from work. The focus must be on whether or not there is a real risk that the misconduct will be repeated or there is a threat to the disciplinary process.

John has worked for the home for six years and has a clean disciplinary record. He is also one of the most popular carers and this behaviour could be considered out of character. We Care should consider alternative measures to suspension while it carries out the disciplinary investigation, for example temporarily appointing a different carer for Mr Brown and placing John on alterative duties that will not require him to deal with visitors. The home should explore alternative options thoroughly before it takes a decision to suspend John.

Based on what Clive has told her about the facts as he knows them, Sarah advises Clive not to suspend John. She says Clive should allow John to continue with most of his usual duties but have no contact with Mr Brown or his relatives until the matter is resolved. When Clive explains this to John he agrees to it but claims that there has been a misunderstanding. He says that he would never speak to a relative in the way that Mr Brown's son has alleged.

Clive carries out a further investigation into the matter. He interviews a carer who was helping John put Mr Brown to bed. It transpires that John's comments were directed at the other carer and not Mr Brown's son. John accepts that he should not have spoken to his colleague in this way, particularly in front of a visitor, but explains that he was using a complex piece of equipment and needed to concentrate to ensure Mr Brown's safety. His colleague's constant chatter and questions were making it impossible for him to do this.

By not suspending John as an automatic reaction to the allegations that Mr Brown's son made, We Care has avoided a period of unnecessary suspension. Had John been suspended, it is likely that he would have been justifiably upset. The employment relationship between him and We Care could have been significantly damaged, potentially leading to a claim for constructive dismissal based on a breach of trust and confidence. The company would also have had to pay John to stay at home for the duration of the investigation and it might have incurred the expense of hiring temporary staff to cover his work.

An employer that is considering whether or not to suspend an employee against whom allegations of misconduct have been made should consider if there is a real risk that the conduct will be repeated or the disciplinary process compromised if it does not. In John's case, given his unblemished disciplinary history, it was unlikely that he would pose a threat to residents, visitors or other employees if he continued to work during the investigation and We Care would have been wrong to suspend him as a knee-jerk reaction to the complaint.

Next week's topic of the week article will be a second case study around disciplinary suspension and will be published on 30 April.

Matthew Briggs (matthew.briggs@osborneclarke.com) is an associate in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.