Q&As

Where an executive director’s employment has been suspended due to gross misconduct, do they still have the authority to obtain information from the company when they are not required to carry out their duties? Can they also be prevented from attending future board meetings or accessing board minutes that do not relate to their position in the company?

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Published on LexisPSL on 12/10/2018

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where an executive director’s employment has been suspended due to gross misconduct, do they still have the authority to obtain information from the company when they are not required to carry out their duties? Can they also be prevented from attending future board meetings or accessing board minutes that do not relate to their position in the company?

From an employment law perspective, suspension may arise in two contexts:

  1. some disciplinary procedures provide for suspension, without pay, as a disciplinary penalty

  2. much more commonly, procedures may provide for the suspension of the employee on full pay for the purpose of investigating allegations of misconduct, or while such allegations are investigated

Before using suspension as a disciplinary penalty, the employer should check the employment contract or relevant disciplinary procedure to ensure that it provides for this; if an employer takes disciplinary action, whether or not under a contractual procedure, only the penalties provided for by the contract may be imposed, consistently with the contract, and then only to the extent that the penalties are provided for under the contract (see eg London Probation Board v Lee).

Failure to comply with any procedural conditions for the imposition of such a penalty, in particular exercising a power beyond the limits provided for (procedures commonly limit the period of suspension that may be imposed, for instance) would not only be a breach of contract but, as a step involving the withholding of pay, be very likely to breach the duty to maintain mutual trust and confidence, and provide a basis for the employee to resign and claim constructive dismissal.

In relation to suspension during an investigation, the precise scope of the power will depend on the wording of the

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