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When is it unreasonable to suspend an employee?

Solicitor, Jordan Bruce

The High Court in the case of Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust has considered whether an injunction should be granted to allow an employee to resume their normal work duties where they had been suspended and would only be permitted to return to work on greatly reduced duties.

Background

The Claimant worked as the Deputy Head of Legal Services for Redbridge University Hospitals NHS Trust (“the Respondent”). The Claimant was suspended by the Respondent because of concerns about the quality of her medical negligence casework although she had not previously received any criticism about this. After she was suspended, the Claimant was diagnosed with stress and was prescribed anti-depressant medication.

Following a report from an occupational health physician, the Claimant was advised that she had experienced the symptoms as a reaction to her unexpected suspension and that this would be alleviated on her return to work.

The Respondent informed the Claimant that she could return to work but that she would be restricted in her duties to legal teaching and that she would not be able to do any inquest or medico-legal advisory work, which comprised the majority of her role. The Claimant refused these terms, as she argued this was a demotion and that it was contrary to the report by occupational health.

The Respondent suspended the Claimant for a second time for failing to accept the duties set. In response, the Claimant sought an interim mandatory injunction from the High Court to permit her to return to work on full duties.

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.

A mandatory injunction is an order of the court that requires a party to do a specified act. Injunctions cannot be granted by an Employment Tribunal. As in this case, an interim injunction can be applied for prior to or during proceedings, so that an order is made before the full hearing, to prevent a Claimant from suffering loss in the meantime.

Decision

The High Court granted the mandatory interim injunction, allowing the Claimant to resume the majority of her duties (although the Claimant voluntarily agreed not to undertake any clinical negligence casework). The High Court concluded that the Claimant had strong grounds to argue the Respondent’s actions had breached the implied duty of mutual trust and confidence as there was no reasonable and proper cause for suspending her from her normal duties and there was no justification for the Respondent seeking to restrict the Claimant’s duties upon her return when the concerns were limited to only one part of her work and not her wider practice.

Comment

It is worth noting that as this is an interim injunction application, the Claimant will still have to successfully present their case at a further hearing. However, this case highlights to employers the importance of only suspending employees where it is reasonable to do so and not as a knee jerk reaction to an allegation of misconduct.

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