Senior judge hits out at automatic suspensions of staff accused of maltreating patients

A Court of Appeal judge has expressed concern at the “almost automatic” response of many employers, when faced with allegations of maltreatment by employees such as nurses, to suspend the staff members concerned and forbid them to contact anyone.

Such action is often taken as soon as a complaint is made and quite irrespective of the likelihood of the complaint being established, Lord Justice Elias said.

The judge made the comments in a footnote to a ruling in Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, a case involving the suspension and subsequent dismissal of two nurses.

The appellants, Mrs Crawford and Mr Preston, were employed by the Trust until their employments were terminated on 13 March 2009. They had been accused of alleged gross misconduct arising out of the way in which they handled a patient known as JE on 22 September 2008.

A complaint had been received about the handling of JE, an 87-year-old dementia sufferer, including that he had been tied to a chair with a sheet. This was something vehemently denied by the two nurses.

However, the incident led to Mrs Crawford and Mr Preston being suspended and the police notified of potential criminal offences.

A subsequent investigation led to disciplinary proceedings. The process took six months before the two nurses had their employment terminated. Neither had had any previous disciplinary issues.

Mrs Crawford and Mr Preston lodged a claim for unfair dismissal and were successful in the Employment Tribunal. The Trust succeeded in having this ruling overturned in the Employment Appeal Tribunal.

The appellants then sought to restore the original ET decision, and the Court of Appeal has now upheld their appeal in part. Lord Justice Elias said there was “obvious justification” for restraining JE, who on the day in question had been “agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention”.

The matter has been remitted to the same Tribunal for it to determine, in the light of the judgment, whether it would be appropriate to reduce the compensation in accordance with the Polkey principles.

On the issue of suspensions and notification of the police, Lord Justice Elias said in his footnote: “As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is.

“I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging."

The Court of Appeal judge pointed out that even if the individuals are subsequently cleared of the charges, the suspicions are likely to linger, “not least I suspect because the suspension appears to add credence to them”.

Lord Justice Elias added that it would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously started from the assumption that the employee suspended in this way was guilty and looked for evidence to confirm it.

“It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him,” he said.

The judge clarified that he was not suggesting that the decision to suspend in this particular case was a knee jerk reaction.

“The evidence about it, such as we have, suggests that there was some consideration given to that issue,” he said. “I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.”

But the Court of Appeal judge went on to say that – whatever the justification for the suspension – he found it “little short of astonishing that it could ever have been thought appropriate to refer this matter to the police”.

He added that it almost defied belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step.

“I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit,” the judge said.

“Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet ‘criminal’ being applied to the employee's conduct. I do not think that requirement was satisfied here.”

Lord Justice Elias pointed out that no-one had suggested that the appellants were acting other than in the best interests of JE and the other patients.

“The restriction was not essentially different to the physical restraint which had been carried out in the day shift,” he found. “I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield [the Service Manager for Rehabilitation and Recovery] was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter.

“But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.”

Philip Hoult