Hot on the heels of the Medical Practitioners Tribunal decision that Dr Richard Freeman, British Cycling and Team Sky’s former doctor, had ordered testosterone knowing or believing it was to be used to improve athletic performance, there have been calls in some quarters (including from DCMS Select Committee member and former Shadow Sports Minister, Clive Efford) for Ineos Grenadiers Team Principal, Dave Brailsford, to be suspended pending a fuller investigation. Brailsford was Performance Director at British Cycling, and Manager of Team Sky, at the relevant times and some are questioning what he and others in these organisations know about Dr Freeman’s actions. But is suspending an employee, even a senior one, as easy as that?
No. And a knee jerk reaction to suspend in the face of a crisis may often be regretted. So what can go wrong? In short, quite a lot:
- Does the employer have the contractual right to suspend in the first place? Ideally, employment contracts will contain an explicit right but in the absence of that the employer would need to justify reliance on an implied right. Getting that call wrong can amount to a breach of contract by the employer, effectively turning the tables and putting the employer in the dock rather than the employee.
- Even if the employer has a contractual right to suspend there must be a compelling reason to do so. If the individual presents a potential risk to other employees or to the organisation then a case can relatively easily be made but absent that the employer will usually have to resort to the mantra that suspension is required to facilitate an unobstructed investigation and to preserve evidence. Given the pertinent events with British Cycling took place 10 years ago that is not overwhelmingly persuasive. An unjustified suspension risks breach of trust and confidence arguments often leading to constructive dismissal claims.
- The counter argument to suspension is the stigmatising damage such action might do. Whilst suspension is theoretically a neutral step from which guilt or innocence should not be inferred, outsiders looking in will often (rightly or wrongly) read no smoke without fire.
- As anyone who has carried out a significant investigation will tell you these processes are often measured in weeks, months and sometimes years, rather than days. Suspensions should normally be relatively short and for no longer than is absolutely necessary. An excessively long period can effectively make it very difficult for an individual to eventually return to their old role, even if vindicated. Where the individual in question is a pivotal figure like Sir Dave, an absence of that length would be keenly felt and very costly in a financial sense too. Employment contracts usually provide for suspension with pay. Suspending without pay for any significant length of time would be hard to justify anyway.
- Finally there is the proverbial can of worms. Investigations often meander in scope and may well lead to fingers being pointed at a number of individuals. Once one has been suspended there is pressure potentially to adopt a similar approach with others unless the circumstances can demonstrably be distinguished. A lack of consistency is often a recipe for grievances or, worse still, discrimination claims.
So whilst suspension is a useful tool in an employer’s armoury, and the Medical Tribunal’s findings in this case are clearly very troubling, there is far more to consider in cases like this than media and political commentators would sometimes have you believe.