Suspended animation

May 23, 2012

Lillian Khan looks at the lessons to be learned by schools from a recent Court of Appeal case where two employees were suspended and the police called.

A recent case looked at how employers should deal with allegations of misconduct that could affect an employee's future career, and when it is appropriate to suspend an employee or involve the police. Although the case arose in the health sector the issues could easily occur in the school environment.

Following a complaint about the handling of a patient, two nurses with unblemished disciplinary records were suspended and the police were notified of a potential criminal assault. There was an investigation leading to disciplinary proceedings, and the whole process took some six months before the nurses were dismissed. The nurses brought proceedings against the employer and successfully claimed unfair dismissal on the basis that there had been failures in the disciplinary process.

The outline of events was as follows. The initial patient incident was reported to the ward manager after three days, the two nurses were interviewed by the employer the next day and immediately suspended for allegedly assaulting the patient. The employer then determined that the police should investigate and put its own investigation on hold. A month later the police informed the employer that no further action would be taken whereupon the employer recommenced its own investigations, which lasted several months. The two nurses were dismissed and lost an internal appeal.

The nurses pursued claims in the Employment Tribunal. The employer appealed to the Court of Appeal and lost.

In handing down its decision the Court of Appeal noted that dismissal would have effectively ended the careers of the two nurses and highlighted two procedural defects which had made the dismissals unfair:

The employer had failed to obtain a copy of the statement of the manager who had reported the incident, which differed from the evidence she gave at the disciplinary hearing; and
In the absence of the two nurses, the employer had carried out an experiment to test whether the patient could have become accidentally restrained by a sheet (which was the essence of the alleged assault): the Court found that this was an unfair procedure because the two nurses could easily have been present to demonstrate whether the patient would have been accidentally restrained.

The Court also said that the threat of possible criminal proceedings was a very heavy burden for the nurses to have faced and in this case the police should not have been involved.

What does this mean for schools?  

The case highlights that where a misconduct dismissal is likely to result in the loss of an individual's career in their chosen profession, the investigation, the disciplinary process and the internal appeal must all be particularly fair and thorough, and the evidence of misconduct must be clear and cogent. Here are some practical points to consider when thinking about suspension.

Suspension will not automatically be justified even where there is evidence warranting an investigation or if there is a contractual right to suspend. In many cases where disciplinary investigations are to take place in relation to allegations of gross misconduct, the automatic response of the employer is to suspend the employee. It was stressed in this case that suspension must not be a knee jerk reaction, and that it will be a breach of the employer's duty of trust and confidence towards the employee if it is.

The following factors particularly should be taken into account when considering whether to suspend:

whether the employee poses a risk to pupils, employees, school property or third parties if allowed to remain at work: for example, is there a risk of harm to a child or of violence?
whether investigations into the allegations would be hampered if the employee remained at work: for example, might evidence be tampered with or destroyed, or witnesses pressurised?
what impact the suspension would have on the employee and his or her reputation.
Suspension should not be treated as a form of punishment for the employee, but as a means of carrying out an investigation unhindered: particular care is needed where it may have the effect that the employee will feel belittled, or demoralised by the exclusion from work and work colleagues.
Suspension appears to add credence to allegations: even if the employee is cleared, suspicions are likely to linger.
Suspension should be for the minimum period necessary. It should be kept under regular review and the employee kept up to date with regards to the progress of the disciplinary investigation.
Misconduct should not be referred to the police without the most careful consideration and a genuine and reasonable belief that the allegation, if established, could properly be regarded as criminal. It is important to consider the strength of the allegations and the nature of the alleged offence as well as concerns for others in the workplace and pupils.
Employers will be expected to pay close attention to the unblemished disciplinary record of the staff involved when assessing the future risk of a repeat of the behaviour concerned.
Employers should consider that a dismissal in some circumstances may be a career changing decision in that a reference to The Teaching Agency (applicable from April 2012) and/or the Independent Safeguarding Authority can involve that teacher being unable to gain other employment within the profession.

And finally …  

As from 1 April 2012, The Teaching Agency took over responsibility for the regulation of the teaching profession. The new Agency will have the power to bar teachers from teaching in cases of serious professional misconduct and will regulate all teachers and instructors including those in independent schools.

Lillian Khan is a solicitor in the employment and industrial relations team at Bircham Dyson Bell. She can be contacted on 020 7783 3762 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..