The English Court of Appeal’s answer is neither.
Rather, it says suspension is lawful where an employer has reasonable and proper cause for doing so.
The case before the Court of Appeal involved a teacher, Ms Agoreyo, who struggled to control two children in her class. Colleagues raised concerns that she had used unreasonable force “to secure behavioural compliance” (as the court put it).
On the back of these concerns, the school suspended the teacher; she resigned and started court proceedings.
In finding the school had not acted unlawfully in the circumstances of the case, the Court of Appeal’s judgment provides useful guidance for employers.
On the one hand, the school’s argument that suspension is a neutral act (that is to say it is neither a disciplinary sanction nor does it imply guilt), was not accepted. On the other, the court did not find that suspension has to be necessary (for example to protect people or property).
Rather, suspension will be lawful where an employer has reasonable and proper cause for doing so.
This gives employers wide discretion to deal with matters, provided they act reasonably.
Employers should still be wary of reacting in a knee-jerk fashion and suspending simply on the basis that an allegation is one of, for example, gross misconduct. Rather employers should give thought to why suspension would be reasonable in the particular circumstances of the case.
In Ms Agoreyo’s case, that could be to protect children.
What happens if criminal proceedings are pending?
This is not uncommon.
Take a hypothetical case of an employer concerned an employee has stolen money from the business: police are informed, and a criminal investigation begins.
The employee receives legal advice not to take part in internal disciplinary proceedings on the basis what they say may incriminate them under criminal proceedings.
Is it reasonable for the employer to continue and to conclude the disciplinary process before the police investigation and any subsequent criminal court proceedings have been dealt with?
A recent, very sensible, Court of Appeal judgment suggests it’s likely to be reasonable in almost all circumstances.
The case of North West Anglia NHS Foundation Trust v Gregg involved concerns raised about a doctor following deaths of two of his patients.
The employer suspended Mr Gregg, the General Medical Council suspended his licence to practice, and the police started to investigate.
The Court of Appeal set aside an earlier court order preventing the employer from starting disciplinary proceedings, pointing out that criminal proceedings can rumble on for many months or years and, in most cases, it is likely to be quite reasonable for the employer not to wait to start their own internal procedures.
What both rulings show — in saying it’s usually perfectly lawful for the employer to proceed with internal disciplinary procedures and that employers have wide discretion when it comes to suspension — is that employers should not be micro-managed by courts or tribunals.
Instead employers ought to consider what’s reasonable in a given set of circumstances and provided that they do that, the courts should be slow to interfere.
