Comment

Suspending employees fairly in the NHS

Dave Palmer, solicitor in the employment team at law firm Dundas & Wilson, explains the issues highlighted by a recent Court of Appeal decision.

In the last six months, employment tribunals have made a number of extraordinarily large compensation awards in cases involving former NHS employees.

In Michalak v Mid Yorkshire Hospitals NHS Trust, a former doctor was awarded nearly £4.5m compensation following a campaign of sex and race discrimination against her. In Browne v Central Manchester University Hospitals NHS Trust, a former divisional director was awarded compensation of nearly £1m for unfair dismissal and race discrimination.

The reason why there have been such large awards in the NHS is based on a combination of factors. The NHS has many employees who receive high salaries, who are often in a vocation with large potential future earnings and who have generous final salary pensions.

Often NHS employees, especially if they are in a vocation in which the NHS has a near monopoly, will struggle to find employment of an equivalent value again once they are dismissed from the NHS.

The combination of these factors means that former NHS employees are more likely than other employees to suffer large losses if they are unlawfully treated. This is a key reason why making sure that any employee suspensions are handled fairly is crucial for NHS employers.

When an allegation of abuse arises against an employee, there is an instinctive tendency to suspend the individual to protect those in their care against future harm. However, a recent Court of Appeal decision shows that even a serious allegation must not lead to an automatic suspension as that may render any subsequent dismissal unfair.

In Crawford and Anr v. Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, a nurse made a formal complaint to the ward manager over concerns about the way an aggressive patient was being treated by four employees.

The nurse alleged there had been an assault. The trust suspended the employees until the alleged assault was investigated by the police. The police investigated but decided not to take further action. Only then was the trust’s internal investigation carried out: it followed its disciplinary policy and dismissed the employees for gross misconduct.

Two of the employees then brought claims against the trust for unfair dismissal. A tribunal held that the employees had been unfairly dismissed.

The tribunal found that the Trust had failed to consider the context of the allegation, namely the difficulty in handling the particular patient, and ruled that the trust had not considered whether the employees had been attempting to keep the patient from harming himself. Crucially, the tribunal was critical of the suspension of the employees.

The trust appealed to the Employment Appeal Tribunal and then to the Court of Appeal. The Court held that the tribunal had been entitled to look carefully at the Trust’s procedures and highlight any defects. The Court of Appeal gave the following general guidance on suspensions:

• Suspension should not be a ‘knee-jerk reaction’;

• Despite the fact that suspension is often in an employee’s best interests, employers must remember that a suspended employee can feel belittled and demoralised by exclusion from work; and

• Even if an employee is subsequently cleared of the charges, suspicions are likely to linger about that employee, not least because a suspension can add credence to the charges.

The Court said that before the decision is taken to suspend an employee (particularly when that employee is subject to criminal proceedings), it is important that an employer carefully considers whether suspension is appropriate. Further, the employer must show it has a genuine belief that the allegation is likely to be a criminal matter.

This is not the first case to criticise the public sector’s approach to suspension. In 2007 a public sector employee managed to obtain an injunction to stop her employers suspending her.

The Court in this case explained that: “Suspension changes the status quo from work to no work, and 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.”

Public sector employers are placed in some difficulty if an allegation of assault or abuse arises in relation to an employee who cares for members of the public; for example, prisoners, patients, children or vulnerable adults.

The employer is primarily concerned with preventing any further instances of abuse and therefore the instinctive reaction is to suspend the employee.

But employers must balance their duty to protect the public with the rights of the employee to ensure that the suspension is fair.

There are practical steps which can mitigate the risk that a suspension will lead to an unfair dismissal:

• Suspension should not be an automatic reaction to misconduct, no matter how serious. Where possible there should be a brief initial investigation before a decision is taken to suspend or to refer the matter to the police;

• Always ask the employee to give their side of the story, to fully understand the context of the alleged misconduct. Doing so has an added benefit to the employer: when misconduct allegations lead to criminal charges, the employee will often use their pending criminal case as a valid excuse for not discussing the misconduct, invoking their right not to incriminate themselves in the criminal case. If the employee is questioned before the police become involved, the employer will at least have some indication of the employee’s defence; and

• The reasons for deciding to suspend, and/or refer the matter to the police, should be documented. If there is a subsequent tribunal claim, the employer then has evidence that there was some thought behind the decision and it was not a ‘knee-jerk’ reaction.

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