Inept handling of disciplinary procedures can lead to both unfair dismissals and, when the employee takes the initiative and resigns, constructive dismissals. If there are not reasonable grounds for a suspension then imposing one may amount to a breach of the implied term of trust and confidence.
In the case of Upton-Hansen Architects Limited v Gyftaki, Ms Gyftaki was a senior architect who had family in Greece. In July 2017 she had travelled to Greece but accidentally booked one day's less leave than she needed, and then decided to stay on for a couple more days for family reasons. On her return the extra days leave were granted in retrospect. Matter closed. Or presumably that's what Ms Gyftaki thought. In September 2017, Ms Gyftaki sought to take additional leave at short notice (learning she had to travel the day before she needed to depart) to allow her to return to Greece, again for family reasons. She emailed her employer requesting the time off. That evening there was a misunderstanding with Ms Gyftaki thinking she had been given permission to go and her manager thinking he had merely acknowledged her email. However, later on in the evening an email was sent to Ms Gyftaki refusing the request. She responded saying she had to travel and would take unpaid leave.
On her return, Ms Gyftaki was suspended on full pay to allow for an investigation into the unauthorised travel and the earlier issue from July, these matters being categorised as potential gross misconduct. She subsequently resigned having raised a grievance and becoming unwell, apparently as a consequence of her employer's actions.
Before a tribunal the evidence of the employer was to the effect that, in view of Ms Gyftaki's seniority and the fact that she was project leader on three important projects it was felt that suspension was a prudent step to take both to protect the organisation and preserve the confidentiality of the investigation, and to protect Ms Gyftaki from embarrassment.
The tribunal upheld the constructive dismissal case, finding that the suspension was at the heart of the claim. It described the reasons given for the suspension as being essentially that the employer was nervous that Ms Gyftaki would act inappropriately at work by way of being obviously upset and setting a bad example to junior colleagues, and the possibility of breaching confidentiality obligations. In the view of the tribunal there was no evidence to support those conclusions nor were they the reasons given to Ms Gyftaki for the suspension. The tribunal concluded that the suspension was not warranted in order to protect the integrity of the investigation or the employer's business, and Ms Gyftaki would have been better protected from embarrassment had she been able to resume her normal duties. The tribunal also found it quite wrong to have re-raised the holiday issue from July as a potential gross misconduct matter. These matters were "likely to seriously damage if not destroy the relationship of trust and confidence".
On appeal the EAT concluded that the tribunal had been entitled to find that there had been a constructive dismissal. From an HR practitioners perspective this case is an important reminder of the need to properly assess whether a suspension is necessary. The mere fact that the misconduct in question is categorised as "gross misconduct" will not be sufficient.