Several years ago a middle manager at a college of further education told me she had been suspended from work for over a year. She was still on full pay, but completely barred from contacting colleagues because, it was alleged, she had failed to meet her performance targets. As a result, a disciplinary investigation was underway.
Sounds familiar? Those of you who have spent time as a union representative will have seen performance problems dealt with by a disciplinary, rather than a capability procedure. But bad as that is, it isn’t the subject of this particular article.
No, what I am taking issue with here is the completely unreasonable duration of this manager’s suspension.
Indeed, over one year on suspension while an investigation is supposedly carried out is surely unjustified. No internal investigation takes that long, so was it just incompetence or something more sinister? To me, a suspension of this length suggests a loss of trust and confidence and may well amount to a breach of the manager’s employment contract.
Yet many employers will tell you that suspension is a neutral act.
Really? Just think for a moment. This particular manager was cut-off from the workplace, with no idea of what was happening to her work, her students, or what message her forced absence was sending to her team. Nor was she told anything about progress of the investigation into her alleged poor performance, or the likely timescale before the matter was resolved. The uncertainty, the stigma, the isolation, and the lack of information can hardly have been “neutral” in their impact.
And it isn’t just me who says suspension is “not a neutral act”. Commenting on a case before the Court of Appeal, when an injunction was granted to lift a suspension on a doctor, the judge said: ‘Suspension changes the status quo from work to no work, and inevitably it casts a shadow over the employee’s competence. Of course this does not mean it cannot be done, but it is not a neutral act’ (Mezey v South West London and St. George’s Mental Health NHS Trust 2007 EWCA Civ 106).
So if suspension is not a neutral act, when can it be used?
In practice it should be used only for serious allegations and in very limited circumstances:
- When there is a potential threat to other staff, the public, or to property; or
- It is impossible to properly investigate the allegation if the employee remains at work (for example because of a genuine risk that they may destroy evidence or attempt to influence witnesses); or
- Relationships at work have broken down to such an extent that suspension is required to keep individuals apart.
- Only after the employer has conducted a preliminary investigation to establish that there is apparently evidence of the alleged misconduct; and
- It is not possible to place the employee in another area of the organisation whilst the investigation is carried out.
Sadly, too many organisations ignore best practice, instead making suspension their default response to all kind of allegations. Suspension after all, is simple and convenient.
So it may take more legal judgements like Mezey before we see habits change. In the meantime, I expect many employees, as was the case with this manager, to take a settlement and leave the organisation on agreed terms rather than remain on a lengthy suspension.