Employment Matters December 2008

Some regard Jonathan Ross’s three month suspension from the BBC for his part in the now infamous “Sachsgate” broadcast as little more than an extended Christmas holiday, rather than an appropriate sanction for gross misconduct.  Few of us, however (perhaps only Mr Ross excepted), would be in a position to take a salary cut of what some reporters estimate to be £150,000, sanguinely. 

During this season of festivities and high spirits many of us will be pushing thoughts of the possible consequences of our actions to the backs of our minds, as we let our hair down and lurk under the mistletoe.  And for most of us the price we will pay will be nothing more than a hangover, and possibly a cringeworthy memory.

But what about those employees who go further, and are guilty of true lapses of judgment, at this time of year or any other?  As well as leaving the nation debating what kind of sanction three months’ suspension is, Sachsgate highlights the difficulties employers face in determining how to deal with employees whose misbehaviour results in consequences which escalate far beyond the damage caused by the original offence.

Suspension without pay

Suspension without pay is occasionally the sanction for an act of misconduct, where the contract or disciplinary procedure provides for it, but in the world of ordinary mortals suspension is more often encountered during the investigation stage of the disciplinary process.  In this case it is supposed to be a “neutral act” and should not usually be seen as a sanction.  Before suspending an employee the employer should consider whether it is necessary (is the allegation against the employee such that his/her presence in the workplace would interfere with the investigation or cause distress or danger to other employees?).  Often an investigation can be carried out without suspending the employee and it can be stressful for the employee to be suspended before allegations are proven.

In these circumstances one would usually expect the suspension to be on pay rather than unpaid, and the investigation should be carried out as quickly as possible.  The employee should be kept informed of the progress of the investigation and the evidence which is uncovered.

As a punishment for wrongdoing a period of suspension without pay could be viewed as draconian, entitling the employee to resign and claim constructive dismissal.  If you are considering suspension without pay as a punishment check that your contract provides for it, and that it is consistent with your “custom and practice”.  You should probably also be considering dismissal or demotion, and will need to be able to explain why the sanction you have selected is the right one.

Where suspension without pay is appropriate is where the contract is for a fixed term, such as in the case of broadcasting celebrities and football players, and perhaps some other, lower profile, individuals.  In these circumstances the employer could still be liable for the remuneration due under the contract, and so suspension without pay may be the only sanction with any “teeth”.  Mr Ross is unlikely to resign and bring a claim for constructive dismissal given that the most he could claim in the Employment Tribunal would be a piffling £63,000.  However, if the BBC had terminated the allegedly lucrative contract he is engaged under then it is highly likely that he would have examined that contract very carefully for clauses permitting early termination.  His lawyers may have argued that the BBC’s decision to broadcast the offending material rendered any such clause void.  In the circumstances a short sharp suspension has been the ideal solution for both parties.