Scott: Assuming I'm correct in that this person who wrote in had been suspended for ages pending an investigation that seems to have gone nowhere, I've seen that in the public sector a lot. They start growing arms and legs, all these investigations. They're interviewing the whole department, and it takes forever to go through. Then something breaks down, and somebody takes out a grievance during it, and that causes another thing. So you can be suspended for quite a while.

Where does fairness lie? When does that become a breach?

Seamus: Certainly, you look at the LRA Code of Practice in relation to disciplinary, and there's a specific part of that that relates to suspensions. Suspensions in general tend to be of a precautionary nature, or sometimes they can be, to allow the organisation to conduct a proper investigation.

You're exactly right. I've done cases where I have seen, certainly in civil service and on the public side, a suspension for over a year while an investigation's been on-going. There has to be a tipping point there were the employee says, "This has gone on too long. This is resulting in a fundamental breach of my contract of employment".

Now, as we know, constructive dismissal claims are difficult because the onus lies on the employee to substantiate their claim that the breach is both fundamental and irrevocable, but, certainly, there is case law there.

I think there's an obiter from Lady Hale before she was Lady Hale. The case relates to someone where an allegation had been made that there had been grooming of a minor. The employee was saying, "That's such a devastating step to take in relation to suspension to put those allegations to me. It results in a breach of my contract of employment". There's definitely a balancing act with it.

For me, suspensions, the onus and the obligation on the employer is to move as quickly as possible. An employee being out on suspension will have an impact upon their mental health. It will have an impact upon how much they remember, how much they can recall the longer that they're out. They're also removed, generally, from all of their access to their computer, their facilities, and all those sorts of things in order to get evidence and things like that.

So there is a duty to move as quickly as possible with it. I think on the suspension side of it, there's definitely a tipping point where the employer is slow or is dragging their heels in relation to it in order just to keep the employee out. That becomes punitive at that point and I think the tipping balance for the employee to say, "Enough is enough". I think it's definitely dependent upon the individual circumstances.

Certainly, whenever I'm advising on an employee that is suspended, it should be reviewed. It should be considered maybe on a weekly basis or every two weeks.

The other side with it as well is that the employee is kept informed and updated as to what is happening during the period of suspension, i.e., what's happening with the investigation. If there is a delay, and these things do happen, there can be delays, but you're notifying the employee of it and saying, "This is where we're at in relation to the investigation. We anticipate that it's going to take another two weeks", or whatever it is, "to complete the investigation".

Scott: There's loads of evidence and case law saying that suspension isn't a mutual act, and if you've got that Sword of Damocles over your head for months and months and months, then dirt sticks, and people would be complaining, I think, and rightly complaining, like our customer did, about this stuff.

Seamus: There's certainly an element from the employee's perspective where the employee feels . . . There's a meeting. They go back to their desk to get their coat because they've been told that they have been suspended. They try to log into their computer. They're shut out. It can feel very much for an employee that, "The decision's been made here. I'm out the door". Their mobile phone is removed from them, or their access on their phone is removed, and they feel very much that they're out in the cold and that the decision's been made here.

That's where I think the employer needs to be very careful with the employee and explain the process. In my letters we're drafting for employers for suspension and things like that, I say that it is a precautionary step or the reason why the employer feels the need to suspend.