The Courts are clear: Suspension at work is often NOT a "neutral" act.

I keep being astonished that NHS organisations (and some trade unions) continue to always represent the work suspension of professional staff as a “neutral act” . I have discussed the grounds on which a suspension might be made in other writings https://www.rogerkline.co.uk/post/suspension-at-work-knee-jerk-reactions-and-neutral-acts

This summary by a recent Employment Tribunal is especially clear and both HR teams and trade unions need to be really clear about the issue.

In the recent case of Dr Susan Gilby vs Countess of Chester NHS Foundation Trust, a case which Susan Gilby comprehensively won, the Tribunal set out a helpful summary of case law. https://www.judiciary.uk/judgments/dr-susan-gilby-v-countess-of-chester-hospital-nhs-foundation-trust/ Their view is set out verbatim below.

Suspension

294. It has been well-established law for some 30 years now that employers should not suspend unless necessary, and then for only the shortest necessary period (see e.g. East Berkshire Health Authority v Matadeen [1992] ICR 723 EAT). Indeed the ACAS Code provides (para 8) that in cases where a period of suspension is considered necessary the period should be “as brief as possible [and] should be kept under review”.

295. Where, as here, an employer characterises suspension as a ‘neutral act’, that might not be the case, particularly where the employee is a professional person: Mezey v South West London & St George's Mental Health NHS Trust [2007] EWCA Civ 106, [2007] IRLR 244 per Sedley LJ [Counsel for the employer] accepts that it is perfectly permissible to restrain a dismissal, but he contends that a suspension is a qualitatively different affair. It is, he submits in the skeleton argument: “a neutral act preserving the employment relationship”.

I venture to disagree, at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean that it cannot be done, but it is not a neutral act.”  (my emphasis)

296. If the suspension is precipitate or otherwise unjustified, it will likely amount to a breach of the implied term of trust and confidence giving rise to a claim of constructive unfair dismissal: Gogay v Hertfordshire County Council [2000] IRLR 703,CA. The Tribunal agreed with Mr Segal that Dr Gilby’s suspension was unjustified for the reasons set out above, and gave rise to a breach of the implied term of trust and confidence. It accepted the claimant’s evidence that the suspension damaged her reputation and there were rumours that she had left the employment of the first respondent against a background of alleged gross misconduct allegations that had no merit whatsoever.

297. Mr Segal in written and oral submissions referred to the Court of Appeal decision in Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, [2012] IRLR 402, and Elias LJ’s postscript to his judgment in that case: This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established.

As Lady Justice Hale, as she was, pointed out in Gogay …,even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them.

It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him” [the Tribunal’s emphasis].

I hope I never hear again of an NHS professional’s suspension from work being described as a “neutral act.” If it is, draw their attention to this blog.