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Can a suspension lead to a constructive unfair dismissal?

Trainee Solicitor, Jordan Hassan

The Employment Appeal Tribunal in the case of Upton-Hansen Architects v Gyftaki has considered whether a decision to suspend an employee accused of gross misconduct could lead to a successful constructive unfair dismissal claim.

Background

The Claimant was employed by Upton-Hansen Architects (“the Respondent”). She needed to travel to Greece to deal with urgent family matters but had already used her annual leave entitlement for the year. The Claimant requested additional holiday and made preparations to travel on the genuine belief that this had been granted.  However, the Claimant’s manager contacted her the day before she was due to travel explaining there had been a misunderstanding as the additional leave had not been granted. The Claimant responded saying that she would have to take the leave as unpaid as the travel arrangements were already in place and she could not postpone.

Upon her return to work four days later, the Claimant was suspended from work pending investigation of an allegation of misconduct (that she had been absent without authority). In response to her suspension, the Claimant resigned and brought a claim for constructive unfair dismissal.

The Law

Where an employee is suspected of serious misconduct, an employer may wish to suspend the employee under investigation. This may be appropriate, for example, where the employer cannot properly investigate the allegation if that employee remains at work. However, if an employer does not have reasonable grounds to suspend, then it risks breaching the duty of mutual trust and confidence which is implied into every contract of employment.

Decision

The Employment Tribunal upheld the constructive dismissal claim finding that the suspension was not reasonable and amounted to a breach of the implied term of trust and confidence.

The Respondent appealed.

The Employment Appeal Tribunal (“EAT”) dismissed the appeal. The EAT examined the reason for the Claimant’s suspension and found that it was because her managers were concerned about how she would react to being told about a disciplinary investigation. Therefore, the reason for the suspension did not relate to her misconduct. The EAT agreed with the Employment Tribunal that a suspension was not warranted and that the suspension was a breach of the implied duty of mutual trust and confidence between the Claimant and Respondent entitling the Claimant to resign.

Comment

This decision should highlight to employers that suspension needs to be carefully considered and should not be a “knee-jerk” reaction. Employers should only suspend employees when there is reasonable and proper cause to do so.

Another important point raised by this case was in relation to the Respondent’s defence to the claim. In an unfair dismissal claim, the burden of proof is on the employer to demonstrate a fair reason for dismissal. Although in this case the Respondent had denied unfair dismissal, it had not set out a potentially fair reason for dismissal as an alternative in the defence (e.g. misconduct).  This meant that when the Claimant established constructive dismissal, the Respondent had no alternative reason to fall back on.

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