Can a suspension pending a disciplinary investigation and hearing amount to a breach of contract?

In its latest article offering legal advice to golf clubs, the National Golf Clubs’ Advisory Association (NGCAA) details that suspensions of members or employees must only be carried out when there is proper cause to do so.

Unfortunately, there can be occasions at a golf club where employees or members are involved in misconduct. This means that the club, normally through its manager or secretary in the first instance, will have to invoke either the employee or member disciplinary procedure.

The first step in either procedure will be to carry out an investigation, which is a key part of operating a process which accords with natural justice. That investigation should gather the facts by taking statements from the relevant witnesses, which will include the accused member or employee. It may also involve the recovery of documentation or electronic records held on site.

Many clubs will want to suspend the employee or member during the investigation in an effort to preserve the integrity of the investigation, such as if there is a concern about them interfering with documents, computer records or the witnesses in the case. Sometimes, a club will simply want the accused employee or member off-site and may give little thought to why they are suspending the individual.

The recent Employment Appeal Tribunal case of Upton-Hansen Architects v Gyftaki has considered whether a decision to suspend an employee accused of gross misconduct could lead to a successful constructive unfair dismissal claim. The question being, was the decision to suspend a fundamental breach of contract? This will be directly relevant for golf clubs as employers when they operate disciplinary procedures for employees, as well as having a bearing on any decision to suspend during a member disciplinary investigation.

Background

The claimant was employed by Upton-Hansen Architects (‘the respondent’). She needed to travel to Greece to deal with urgent family matters but had already used her annual leave entitlement for the year. The claimant requested additional holiday and made preparations to travel on the genuine belief that this had been granted.

However, the claimant’s manager contacted her the day before she was due to travel explaining there had been a misunderstanding as the additional leave had not been granted. The claimant responded saying that she would have to take the leave as unpaid as the travel arrangements were already in place and she could not postpone.

Upon her return to work four days later, the claimant was suspended from work pending investigation of an allegation of misconduct (that she had been absent without authority). In response to her suspension, the claimant resigned and brought a claim for constructive unfair dismissal.

The law

Where an employee is suspected of serious misconduct, an employer may wish to suspend the employee under investigation. This may be appropriate, for example, where the employer cannot properly investigate the allegation if that employee remains at work. However, if an employer does not have reasonable grounds to suspend, then it risks breaching the duty of mutual trust and confidence which is implied into every contract of employment. That could amount to a fundamental breach of contract to allow the employee to resign and successfully claim constructive unfair dismissal.

Decision

In the first instance, the Employment Tribunal upheld the constructive dismissal claim finding that the suspension was not reasonable and amounted to a breach of the implied term of trust and confidence.

The respondent employer appealed.

The Employment Appeal Tribunal (‘EAT’) dismissed the appeal. The EAT examined the reason for the claimant’s suspension and found that it was because her managers were concerned about how she would react to being told about a disciplinary investigation. Therefore, the reason for the suspension did not relate to her misconduct. The EAT agreed with the Employment Tribunal that a suspension was not warranted and that the suspension was a breach of the implied duty of mutual trust and confidence between the claimant and respondent entitling the claimant to resign.

Comment

This decision should highlight to employers that suspension needs to be carefully considered and should not be a ‘knee-jerk’ reaction. Employers should only suspend employees when there is reasonable and proper cause to do so. As with previous caselaw, there should be a prima-facie case before suspension takes place, rather than a mere allegation, for example.

In the case of a member suspension, there should be further caution exercised than in the case of the employee. It would be sensible to set out specifically within the golf club constitution that there is a right of suspension from the course and / or clubhouse during a disciplinary investigation so as to further reduce the risk of suspending.

For further advice on this or any other matter affecting the law for a golf club, please contact Alistair Smith on 01886812943 or alistair@ngcaa.co.uk

The National Golf Clubs’ Advisory Association (NGCAA)

The Media Centre, Emirates Riverside,

Chester-le-Street, County Durham, DH3 3QR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk