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Employers need to be careful when suspending an employee. This is because suspension is a serious step with major ramifications for the employee. Depending on the length of any suspension, returning to the workplace can pose additional hurdles for an employee who has been suspended.
Employers should not suspend simply because the allegation relates to gross misconduct.
Before employers suspend, they must carefully consider what grounds they have for suspension, otherwise, they could be in breach of the implied term of trust and confidence. Valid grounds include potential threat to the business or other employees, or where it is not possible to properly investigate the allegations if an employee remains at work (for example, because they may destroy evidence or attempt to influence witnesses).
So what do employers need to consider before a suspension?
- Whether they have an express right to suspend under the employment contract
- Will suspension be on full pay or no pay?
- Are there alternatives to suspension, such as, transferring the employee to another part of the business?
- Consider what other employees, clients and external parties will be told about the suspension
- The process of suspension should be considered by a suitable person and fully documented
- Whether any challenges of discrimination can be alleged. Consider if there are any differences in treatment and whether there are good reasons for it
- Whether their response is a knee jerk reaction due to the type of allegation or seniority of the employee
Once a decision to suspend has been taken, employers should ensure that they:
- Keep it as short as possible
- Keep it under review
Acas has produced a useful guide on suspension. This guide considers the use of suspension in cases where a serious allegation of misconduct has been made. A failure to follow the Acas code could be used by the employee in support of a constructive dismissal case.
Lastly, stating to the employee that suspension is a neutral act does not make it so, if the behaviours of the employer contradict this assertion.
To discuss employment law queries including suspension in more detail, contact [email protected].
