Disciplinary suspension: case study 2

Anna Chamberlain of Osborne Clarke concludes a series of articles on disciplinary suspension with a second case study, which looks at a situation in which allegations of serious misconduct have been made against two employees. The case study considers whether or not it is appropriate to impose periods of disciplinary suspension on them. 

WeDo PR Co is a successful and fast-growing PR company. Mark is a sales executive and has worked for the company for two years. He has an excellent performance record and has been encouraged to apply for a new position of sales manager. Mark, who is openly gay, has made a formal complaint against one of the other sales executives in the team, Rob, alleging that Rob has been making homophobic comments. The company is quite new and has never had to deal with a situation like this before. The sales director, Claire, realises that the situation is potentially serious and the company will need to investigate further.

Should Claire automatically suspend Rob?

No, Claire should not automatically suspend Rob. Employers that are faced with allegations of serious misconduct need to consider carefully whether or not it is appropriate to suspend the employee concerned pending a disciplinary investigation, before going ahead and doing so. The Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website), with which employers should comply when dealing with disciplinary situations, does allow for periods of suspension with pay where necessary. However, suspension that is unwarranted and/or amounts to a knee-jerk reaction to allegations may amount to a breach of the implied term of mutual trust and confidence (Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 CA and Gogay v Hertfordshire County Council [2000] IRLR 703 CA).

Suspension may be an appropriate response in this situation but Claire should find out more about the nature and gravity of the allegations first.

Claire holds an investigatory meeting with Mark. When asked for more detail, Mark reveals that Rob has been intimidating him about applying for the promotion to sales manager. He thinks that Rob wants the position himself. He has been making openly homophobic remarks, referring to Mark's sexuality and saying that he "isn't man enough for the job".

Mark also thinks that Rob has discovered that he has made a complaint against him. He says he confided in a colleague that he was thinking of bringing a complaint and thinks that Rob has found out. He says that Rob deliberately bumped into him in the kitchen making him spill his freshly made coffee on himself and then said to him: "You need to get out of my way in more ways than one. Are you man enough to take the heat?" Mark also thinks that Rob is trying to rally support from his colleagues against him, in particular a group of employees with whom Rob is close friends. When she hears this, Claire recalls that she has noticed Rob huddled with the other staff and whispering. She did not think anything of it at the time but now is concerned that Mark might be right.

Would it be appropriate for Claire to suspend Rob?

Claire's investigation has revealed that the allegations against Rob are serious. Rob's alleged conduct is intimidating and likely to amount to harassment under the Equality Act 2010. Harassment and threatening physical and verbal behaviour are likely to constitute gross misconduct. The Discipline and grievances at work: Acas guide (PDF format, 898K) (also on the Acas website) acknowledges that it may be necessary for an employer to suspend during an investigation in some situations, for example where the allegations amount to gross misconduct. The need to protect other employees is another example, which is likely to apply in this case as Rob and Mark work in the same team.

Claire also has reason to believe that Rob may be rallying support from colleagues against Mark. This could influence the company's further investigation into the allegations. The Acas guide also cites concern about evidence being tampered with or destroyed or witnesses being pressurised as a reason for employers to consider suspension.

However, before going ahead with a suspension, WeDo PR Co should consider the circumstances and consequences of the allegations and also Rob's job, experience and disciplinary record. It should also consider the alternatives. It could temporarily move Rob to another area of the business. It should discuss this option with Mark first as he made the allegation and may feel more comfortable if he and Rob do not have to work together. However, the company will need to obtain Rob's agreement to a temporary move.

WeDo PR Co decides to suspend Rob while it carries out a further investigation. What steps does it need to take in relation to the suspension?

Having made the decision to suspend Rob, the company should check his contract and its disciplinary procedure to see whether or not there are contractual conditions attached to suspension. It should write to him to advise him of the suspension and his rights during it and make clear that it is not a disciplinary sanction. In accordance with the Acas code, the suspension period "should be as brief as possible [and] should be kept under review". See Disciplinary suspension: checklist in this series for more details of the steps that employers that are considering suspension should take.

Meanwhile, in WeDo PR Co's finance department, an audit brings to light that a senior accountant, Rachel, may be committing fraud. She has claimed a large amount of unusual expenses that do not tally with her workload. Why would it be appropriate for WeDo PR Co to suspend Rachel in these circumstances?

It would be appropriate for WeDo PR to suspend Rachel pending further investigation as the allegations against her are very serious, namely theft and fraud, which would normally amount to gross misconduct. The company's property is at risk (in the form of cash losses). Rachel is a senior employee in a position of trust and is likely to have access to the company's funds. The need to protect company property is another potential reason for suspension that the Acas guide acknowledges.

The company will also want to ensure that Rachel does not have the opportunity to cover up her actions. As mentioned above, suspension may be justified where the employer uses it to prevent the employee from tampering with the evidence against him or her.

As the findings of the audit give WeDo PR Co reasonable grounds to suspend Rachel pending further investigation, it writes to her to advise her that she is suspended on full pay and makes clear that the suspension is not a disciplinary sanction.

Next week's topic of the week article will be the first in a new series on the unfair dismissal qualifying period and will be published on 8 May.

Anna Chamberlain (anna.chamberlain@osborneclarke.com) is a senior solicitor in the employment team at Osborne Clarke.

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