Employee suspensions: How long is too long?

In the recent case of Kathryn Hopkins v The Commissioners for her Majesty’s Revenue and Customs (HMRC) [2020], an employee was arrested by the police for serious criminal offences including a serious sexual offence. She disclosed the fact to her employer and was immediately suspended on full pay pending disciplinary proceedings for possible gross misconduct, with dismissal as a possible outcome.

More than two years after the employee was arrested, the employee had not been charged with any criminal offences nor had she been informed by the police that their investigation was closed. At the time this case was heard the employer had only conducted an investigation interview with the employee but had not issued any disciplinary charges and the employee remained suspended.

The employee brought many claims including:

1. The employer had breached GDPR and data protection laws by processing the employee’s personal data, including criminal offence data for the purposes of the suspension and disciplinary proceedings; and
2. The employee’s suspension was unfair and/or in breach of the employer’s policies and ACAS Guidance as it was not effectively reviewed or kept as short as possible which she contended caused her psychological illness.

This article focuses on the court’s decision in relation to the latter.

Interestingly, the Judge struck out all but two claims in their entirety but held that the employee’s suspension was potentially unlawful and so the breach of contract claim concerning the length of her suspension, and whether it caused the employee any loss or damage, could proceed. The Judge pointed out that damages can be awarded where an unlawful suspension causes a depressive illness. 

What can we take from this decision?

Suspending an employee in response to even the most serious of misconduct allegations could result in a claim for breach of contract if, employers allow the period of suspension to continue for longer than is necessary.

Suspension is likely to have a detrimental effect on an employee, and if unlawful, employers may be liable for loss of earnings and compensation for any damage to reputation and/or psychological damage.

Important tips for employers

The courts do not view suspension as a neutral act. It is a serious step and one which can undermine the relationship of trust and confidence between employee and employer. The longer a suspension lasts the more likely that the relationship will be damaged. Employees could attempt to use the length of a suspension to support an unfair constructive dismissal claim as well as claims for breach of contract.

A period of suspension should be kept as brief as possible and regularly reviewed to ensure it is still necessary. Employees should be kept regularly updated about their suspension, the ongoing reasons for it, how long it is likely to last, and whether it will be extended. Where any delays are caused employees should be informed of delays.

Employers should be mindful of the fact that the continued absence of a colleague following suspension will lead to speculation and the longer a member of staff is suspended, the more damage that is likely to occur. They should also be mindful of the effect that a protracted suspension can have on an employee’s wellbeing.

If you have any questions about suspending an employee or any other employment law issue, please contact Sorcha Monaghan.