Over the last few months Pride has been celebrated around the country (Happy Pride everyone!). However, not everyone is celebrating and this week a bus driver in Norwich was suspended after refusing to drive the 501 bus to Thickthorn because its number was rainbow-coloured. The bus driver apparently insisted on swapping buses, complaining that the rainbow colouring "promoted homosexuality". Go East Anglia, who runs the service, have indicated that a full investigation is under way.
We may never find out what action (if any) Go East Anglia decide to take against the bus driver, or if this issue ends up being the subject of employment tribunal proceedings. For now, this incident serves as a useful opportunity to recap when an employer is allowed to suspend an employee under law.
A common myth is that suspension is appropriate whenever there is an allegation of gross misconduct. This is incorrect. In fact the law tightly limits when suspension can be legitimately used. Suspension is a protective measure and broadly speaking the employee's continued presence at work must pose a real risk to either:
- the disciplinary investigation (is it likely that the employee may destroy relevant documents or intimidate witnesses?);
- the business (in this case Go East Anglia may argue that if he had remained at work there would be a risk that the bus driver would disrupt services and potentially damage the company's brand by continuing to refuse to drive buses with rainbow numbers); or
- its employees (this may be relevant if the allegation of misconduct is bullying, for example).
If none of these risks apply then suspension could breach the implied term of trust and confidence and, in a worst case scenario, the employer may find itself defending a constructive dismissal claim. There are also other considerations to bear in mind. For example, employers should check whether there is a contractual right to suspend in the contract of employment and whether the employee has an implied right to work (e.g. if their earnings, such as commission, depend on them being at work).
Any suspension should be kept as short as possible and reviewed frequently to check it is still necessary. Since suspension is not a punitive sanction, full pay and benefits should be maintained throughout.
A bus driver in Norwich has been suspended after refusing to drive a bus decorated with a rainbow-coloured number in celebration of gay pride.