When an employee is suspected of misconduct, many employers’ automatic reaction is to suspend them. The employer feels safe doing so, as they are aware suspension is not a disciplinary sanction, nor is it an indication of guilt.
However, this is not always the case, as the High Court has recently reminded us.
In 2004 Mr. Marsh commenced employment with the Ministry of Justice (MOJ) as a Prison Officer in a Women’s Prison. In February 2010 a female prisoner alleged that she had been sexually assaulted by Mr. Marsh, who was therefore immediately suspended on full pay. The Police were called, Mr. Marsh was arrested and a thorough investigation was carried out. The Police ultimately decided to take no further action against Mr. Marsh and he was never charged.
While this was going on, the MOJ began to carry out its own internal investigation.
In November 2010 the MOJ decided to postpone its internal investigation, as other Prison Officers were the subject of criminal proceedings. By this time, Mr. Marsh was diagnosed with depression.
In July 2012 – almost two and a half years since first being suspended – Mr. Marsh was found to be innocent of all allegations and invited to return to work by the MOJ. Sadly, Mr. Marsh was unable to do so because of his depression and was then dismissed on the ground of capability in May 2013.
Unsurprisingly, Mr. Marsh brought a claim for damages against the MOJ on the basis that his depression had been caused by them. The High Court found in his favour and ordered the MOJ to pay him over £280,000.00 in damages.
In coming to its conclusion, the High Court decided that:
(a) The MOJ had breached the duty of care it owed to Mr. Marsh by postponing its internal investigation in November 2010.
(b) If the MOJ had not breached their duty, Mr. Marsh would have been fit to return to work in July 2012.
(c) Most importantly, it was the length of the suspension which prolonged the depression and led to his dismissal.
(d) Mr. Marsh was not obliged to object to his suspension or the length of it, as the MOJ had alleged.
The lessons an employer can learn from this case are as follows:
- Suspending an employee is a last resort and should not be an automatic reaction.
- Suspension is only appropriate if, for example, there is a real threat the employee may interfere with the investigation or witnesses, or may be guilty of further misconduct.
- If suspension is absolutely necessary, it should be kept as brief as possible and therefore internal investigations must be carried out expeditiously.
- The suspended employee remains entitled to full pay during the period of the suspension.
If you have a query arising out of this case, or indeed in relation to any aspect of H.R. or employment law, please contact Jonathan Moreland (jmm@swinburnemaddison.co.uk) or Sharney Randhawa (shr@swinburnemaddison.co.uk), or call 0191 3842441.
