Employment case update | Did an employer’s decision to suspend amount to constructive dismissal?
Yes, the Employment Appeal Tribunal (EAT) found in Upton Hansen Architects Limited v Ms X Gyftaki. In July 2017, Ms Gyftaki realised while she was… Read more
Yes, the Employment Appeal Tribunal (EAT) found in Upton Hansen Architects Limited v Ms X Gyftaki.
In July 2017, Ms Gyftaki realised while she was away on holiday that she had booked fewer days leave than she needed. Those additional days were later granted, and by September 2017, she had exhausted her leave entitlement for the year. Ms Gyftaki then became aware that she may need to travel to Greece to deal with an urgent family matter, and on 14th September, she bought a ticket to travel to Greece on 28th September. She didn’t tell her employer about the possibility of travel until the morning of 27th September, when she emailed her line manager asking for permission.
On the evening of 27th September, she was refused permission by email, and Ms Gyftaki replied to say that she could not postpone the trip and would need to take the absence as unpaid leave. Her employer saw this as a failure to comply with management instructions, and suspended Ms Gyftaki while an investigation was carried out, which included an allegation relating to the absence in July 2017.
The Tribunal heard evidence that her line manager viewed the suspension as a prudent step to take, due to Ms Gyftaki’s seniority, the fact that she was project lead on important projects, and to protect the organisation, Ms Gyftaki’s reputation, and the confidentiality of the investigation.
Although the Tribunal was critical of Ms Gyftaki’s conduct, it found that the decisions to suspend Ms Gyftaki, and to include the July absence, breached the implied duty of trust and confidence, and that she had been constructively unfairly dismissed and wrongfully dismissed. The EAT upheld this decision.
The Tribunal noted that the company’s advisers seemed to be under the incorrect impression that any charge of gross misconduct would generally warrant the suspension of the employee concerned.
Comment: This case is a helpful reminder that suspension is not viewed by the courts as a neutral act, even where the employee is being investigated for a gross misconduct offence. It should be used as a last resort, where alternative options are not practicable, and should not be for any longer than is necessary.
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