As enshrined in caselaw, there is a mutual obligation implied in every contract of employment that the employer will not, without “reasonable and proper cause”, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust that exists between employer and employee.  

This means that an employer should not suspend an employee from their job, without “reasonable and proper” cause. To do otherwise, would amount to a fundamental breach of trust and confidence, placing the employer at risk of a constructive unfair dismissal claim. 

In a very recent case, the Court of Appeal has decided that a county court judge was entitled to find that a school had reasonable and proper cause for suspending a teacher. This was put in place in order to investigate allegations made by two teaching assistants that she had used unreasonable force against two children with special educational needs and challenging behaviour. 

On appeal, the High Court had found that it had not been necessary to suspend the employee, as her line manager had investigated two of the incidents and had not considered them worthy of disciplinary action; and had only just introduced a scheme of support for the employee in managing the challenging behaviour, which had not yet been fully implemented. Therefore the suspension was a breach of trust and confidence. The Court of Appeal disagreed. It found that the only test for determining whether suspension amounts to a fundamental breach of contract is whether or not there is reasonable and proper cause to suspend the employee. Whether or not the suspension was strictly “necessary” is not a relevant consideration.   

ACAS non-statutory guidance on suspension gives (non-exhaustive) examples of when there would be “reasonable and proper cause” for suspending an employee. The guidance states that suspension should only be considered exceptionally if there is a serious allegation of misconduct and:

• There are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation;

• Working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or other business interests if the employee remains in the workplace; or

• The employee is the subject of criminal proceedings which may affect whether they can do their job.

Other alternatives to suspension, such as a temporary transfer to a different department or role, where appropriate, should be considered first.

At Markel Law we regularly comment on SME related matters.

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