Employment & HR - colourful people chain image

Prevention better than cure

Is an employee who was suspended by his manager, but afterwards cleared of allegations, entitled to resign and claim constructive dismissal? In the case of Assamoi v Spirit Pub Co (Service) Ltd it was deemed that the manager’s behaviour, including wrongly suspending the employee, which led to the employee resigning, was not serious enough to amount to a fundamental breach of the contract (namely the implied term of trust and confidence). Further, an apology from the senior management had prevented the matter from escalating.

It was established, in the case of Bournemouth University Higher Education Corporation v Buckland, that a repudiatory breach cannot be later rescued by the defaulting party. However, in Assamoi v Spirit Pub Co (Service) Ltd The Employment Appeal Tribunal drew a distinction between preventing matters from escalating into a breach of the implied term of mutual trust and confidence and trying to cure a breach that had already taken place. Here, the manager’s behaviour was not serious enough to amount to a breach of trust and confidence. Senior management had properly investigated the situation and had taken steps to protect the employee.

So, if you are considering suspending an employee:

  • What are the reasons for wanting to suspend? Generally suspension should only be invoked in serious situations and/or where there is a genuine concern that the employee might hinder the investigation;
  • Keep it short;
  • Confirm the suspension in writing; and
  • Remember the employee should still be paid.

If in doubt, give us a call and we will ensure you get it right.