Suspension is no longer the easy option to take while misconduct claims are investigated. Raymond Silverstein reports Employers of all sizes, including those in the food industry, are routinely called upon to investigate serious allegations involving their staff. Retailers in particular are finding they have to deal with an increasing number of situations which involve sensitive issues which could amount to gross misconduct. Concerns about theft, drinking and fighting have been joined by claims of harassment, drug taking and supplying and downloading offensive material from the internet. A recent survey has revealed that half the workers who have access to the internet visit "adult" web sites. It is easy to see why some employers feel compelled to take, and be seen to take, action as soon as possible and suspend an employee on the grounds that an allegation has been made, before any meaningful inquiries have begun. Claims of discrimination and constructive dismissal are frequently threatened or made by the alleged victims while some employees threaten to resign and make a claim unless the alleged perpetrator is dismissed or disciplined. In the often "rough and tumble" store environment many employers have encountered problems trying to control members of staff who allege that a fellow employee, past or present, has behaved in a particularly objectionable way. Some even threaten to call in the police unless the employer takes action. Employers tend to prefer to keep matters in-house but should consider whether old scores are, in fact, being settled. There has been a 32% increase in complaints made to employment tribunals over the past year, according to ACAS. Until now, employers faced with serious accusations have tended to suspend first and make enquiries later, intent on protecting themselves (and others), and maintaining the status quo. But a recent decision by the Court of Appeal should make employers reconsider this approach. The case centred on a teenage girl who suffered from Fragile X syndrome, a chromosomal condition which left her with learning and communication difficulties. When concern about abuse was raised against a staff member of her residential home, the employer judged the information difficult to evaluate. It suspended the care worker pending its inquiry into the matter. A letter delivered to the employee explained that her suspension was to allow an investigation into an allegation of abuse to be made. The investigation lasted seven days and concluded that there was no case to answer. By then the care worker was ill. She returned to work, intermittently, and has not worked since 1998 because she was diagnosed with clinical depression ­ a substantial and significant cause being her suspension. The care worker brought proceedings, claiming loss of earnings and compensation for personal injury. The employer denied liability but accepted that the contract of employment included an implied term that it would not, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between itself and its employee. The court added that it is now established law that a mutual obligation to that effect should be implied in every contract of employment, written or otherwise. It decided that although a concern had arisen which demanded further investigation, to describe it as an allegation was to put the matter "far too high". It ruled that by suspending the care worker because an allegation existed, the employer had acted in breach of the implied term. The court increased the amount of compensation payable to £39,500 to take account of a further year's loss of pay. It would be fair to say that the law is now in something of a mess on this issue. Last year the Court of Appeal decided that compensation was not payable in respect of an employee's mental breakdown caused by wrongful dismissal. That case was distinguished from this one on the grounds that suspension, involving dismissal, entails an on going relationship. Employers should nonetheless treat the implied term with respect at all times, as should employees. Thankfully concerns of abuse do not often arise in the grocery industry. In this recent decision, the court has drawn something of a line in the sand to remind employers that, even in these litigious and politically correct days every employee is entitled to something better than a knee jerk suspension. Alternatives such as transfer or paid leave ought to be considered. The current spate of stress at work claims should also warn employers off making premature allegations unless and until they are satisfied of their ground. The downside to the case is that employers must decide, quickly and in difficult situations, at what point, if ever, does a concern become an allegation while balancing the needs and expectations of an alleged perpetrator with those of the alleged victim without falling, expensively, between two stools. Raymond Silverstein is a partner with solicitor Browne Jacobson, specialising in employment issues {{MANAGEMENT FEATURE }}