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Suspending an Employee

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Suspension from work is where an employee continues to be employed under their contract of employment, but is asked not to attend the workplace, or undertake any work, typically whilst a serious disciplinary matter is investigated against them. The employee may also be asked to refrain from having contact with colleagues, customers and clients, unless authorised to do so.

Suspension should only be used as a last resort, not least due to the reputational implications for the employee.

ACAS guidance published in September 2022 provides employers with clarity on the use of suspensions at work. While the guidance is non-statutory and as such not binding on employers, failure to follow the guidance could expose the employer to claims for unfair dismissal.

In this guide for employers, managers and HR, we explain the implications to consider before suspending an employee, the process to follow when suspending someone and how to approach managing the

 

Reasons for suspending an employee 

The ACAS guidance states that suspension should only be used in extreme situations where there are no other options. Specifically, suspension should only be considered where protection is needed in respect of:

  • Workplace investigations – to avoid interference or influence over witnesses and evidence;
  • The business itself – to avoid damage or harm to customers, property or commercial interests;
  • Other employees;
  • The individual being investigated.

 

In practice, suspension is typically used as part of an organisation’s disciplinary procedure to allow for a fair investigation, but it may be used in other circumstances such as medical or health and safety concerns.

 

Suspension for medical reasons

Employers have the right to suspend an employee from work on medical grounds if the workplace environment or the role they perform puts their health at risk.
The employee is then entitled to be paid for a period of not more than 26 weeks if they have already been engaged there for at least one month, are available to return to work, and have not declined any offer of other suitable work unjustly.

 

Suspension due to maternity

Employers have to carry out a risk assessment for pregnant employees to identify and mitigate any dangers to the mother and her unborn child. If the risk assessment reveals any specific dangers that cannot be avoided and there are no modifications to the workload or environment, the employee may be placed on paid leave to safeguard herself and her unborn child.

 

Suspending an employee under investigation

If an employer does not have all of the facts, relating to an allegation or alleged incident, they may decide to suspend an employee who is under investigation at the start of the investigation process. This is a critical decision which should not be taken wothout full consideration in light of the potential reputational implications for individuals concerned.

In this article, we focus on the question of suspending an employee during an investigation.

 

Factors to consider when deciding to suspend an employee

Employers should take a number of factors into account when deciding whether to suspend an employee:

  • Established facts
  • Risks of not suspending the employee
  • Employee’s wellbeing and impact of suspension on their mental health
  • Alternatives to suspension

 

With these considerations in mind, the choice is to either suspend the individual; or make a temporary a change through an alternative to suspension; or decide not to proceed with suspension. The decision to suspend must be reasonable. If the decision is not to suspend the employee, the employer may still suspend the employee if further/new information comes to light through the investigation that would render suspension reasonable.

 

Alternatives to suspension 

Employers are advised by ACAS to take into account temporary alternatives to suspension, including:

  • Making changes to shifts or working patterns
  • Working in a separate function or department within the organisation
  • Working from a separate workplace or location or from home
  • Preventing the worker from doing a portion of their job
  • Working with different clients or away from clients altogether
  • Removing the employee’s access to or use of a certain systems

 

The relevance and suitability of any alternatives will depend on the specific circumstances and factors such as the nature of the individual’s role and the allegations against them. It may be that suspension is the most appropriate course of action. Documenting the decision-making process and reasons why suspension is the chosen course of action is advised; contemporaneous records can then be referred to in the event of any complaints.

 

Deciding between two employees

A common scenario for employers is having to manage a situation affecting two or more employees. Employers are advised to proceed with caution and consideration to determine what action would be reasonable and fair in the circumstances, which could include:

  • Move the two individuals
  • Only moving one individual
  • Not moving anyone

 

If the issue relates to a complaint made by one of the individuals, and separation is necessary, you should not move the complainant as this could be deemed a penalty for raising the issue.

In all cases, the welfare and mental health of all parties involved should always be supported.

 

External parties’ involvement 

If the matter involves external parties, such as the police in criminal cases or a regulatory or industry body, this does not in itself necessarily justify suspension. The employer should take such factors into account, along with other facts and key considerations in the specific circumstances when deciding if suspension is appropriate.

 

Do you have the right to suspend?

If the employment contract includes a right to suspend, most instances will not be considered a breach of the employee’s contract. However, where the contract is silent or the employee has an implied right to work, for example, variable pay based on work done, such as commission and shift premiums, or argues that they need to maintain a certain profile in order to work, a suspension where there is no clear contractual right to do so may be considered a breach of contract.

In this circumstance, an employer should exercise extreme caution before suspending the employee, as a breach of contract would result in the employer being unable to rely on other contract conditions such as post-termination restrictions, as well as a claim for damages.

Even where you do have the contractual right to suspend – should you? Employers should assess the circumstances on a case-by-case basis to determine if there is “reasonable and proper cause” to suspend the employee, taking all relevant evidence into account, to avoid claims from the employee, such as constructive dismissal following a resignation and discrimination.

Employers should consider:

  • What is the preliminary evidence in regard to the allegations? The employer must have conducted at least some preliminary inquiries before deciding to suspend to ensure that the claims are not false. Can suspension be delayed until more material evidence is produced during the course of the investigation if there is minimal evidence provided at the outset?
  • Is the suspension necessary? What are you hoping to accomplish by suspending the employee? Is there a serious risk to clients, the business, or the investigation if the employee stays at work?
  • Is there a less radical means of accomplishing the same goal? Would working from home, or from a separate location, or putting in place clear restrictions on access to information or other employees, for example, provide the protection that the employer requires?
  • What impact will the employee’s suspension have? Will the employee’s reputation be harmed as a result of the suspension, either internally or externally, and how does this compare to the employer’s interests?

 

An employer who has evaluated all of the above is less likely to face allegations of making a knee-jerk reaction and breaching the work relationship’s trust and confidence.

 

How to suspend someone 

Employers should exercise caution when considering whether or not to suspend someone, obtaining as much information as possible about the allegations and ensuring they provide adequate support to any employee that is suspended from work.

If alternatives are not suitable in the circumstances – such as temporarily relocating the employee to another part of the organisation – the employer must still be satisfied that suspension is reasonable in the circumstances and not a ‘knee-jerk’ reaction. For example, suspension may be reasonable if the employee’s presence in the workplace is likely to obstruct a fair investigation by attempting to influence witnesses or destroy evidence, or if the employee is judged a potential threat to other employees.

You should inform the employee as quickly as possible after making a decision to suspend them. It is generally advisable to be do this face-to-face, or by video or telephone, so as to handle the matter sensitively, to answer any immediate questions they may have and to signpost support. It is best practice to confirm the suspension in writing; although this is not a legal requirement, it is advisable to provide clarity and a written record of the terms of the suspension.

Explain that the employee is suspended but not for disciplinary reasons and the suspension does not mean you’ve decided they have done something wrong. Also detail the circumstances surrounding the suspension, including the examination of alternatives, the reasons for rejecting them and why you believe suspension is necessary. You should also outline the employee’s rights during suspension (such as entitlement to usual pay and benefits) and their responsibilities during this period. Identify who the employee should contact during suspension, how long the suspension is scheduled to last and what the next steps are. You should also be clear that the individual will have the opportunity to put forward their case and that this will be listened to and considered before any decisions are made.

Finally, you should provide a copy of the organisation’s suspension policy if applicable, and confirm you have the correct contact details for them.

As there are no rules on what and how much to tell the employee about the grounds for suspension or investigation, employers should exercise discretion in determining what should be kept confidential and what is appropriate to share, while providing adequate support and helping the individual understand what is happening and the allegations they face and will have to defend. This would usually involve telling the individual what the investigation is about, why they’re involved and the reason for the suspension.

Employers should also ensure they follow a fair and lawful disciplinary procedure, as per the organisation’s policy and/or ACAS guidance.

 

Supporting the suspended employee

You have a legal duty of care as an employer to help the employee throughout the suspension and consider their welfare.

The ACAS guidelines also emphasise how crucial it is to assist the employee while they are on suspension, acknowledging that this may be stressful for them and have an adverse effect on their mental health.

It may, in rare cases, result in the employee experiencing a new mental health problem or triggering or worsening an existing issue.

When notifying the employee of their suspension, it is recommended to signpost them to available support and advise that support is available should it be needed.

It is more challenging for the employer to recognise if an employee is suffering adversely during their suspension since they are absent from the workplace. As such, the employer should keep in touch with the individual while on suspension. This would usually involve keeping the employee informed of the progress of any investigation, and providing continued support for their mental health and wellbeing.

Employers are advised to agree with the employee how often to contact them during the suspension, and the employee should also be given contact details of the person to contact if they have any queries.

The ACAS guidance refers to specific ways that employers can help to stop mental health problems from developing or becoming worse by:

  • Being clear in communications with the employee when notifying of the suspension and throughout the suspension period.
  • Being clear that the suspension does not imply that you believe they did anything wrong and that you will take their perspective into consideration before making any decisions.
  • Making ensuring the suspension lasts only as long as necessary.
  • Keeping contact with the employee during the suspension, updating them of the investigation and when it is likely to conclude.
  • Ensuring the employee knows who they can contact if they have any problems while on suspension.

 

Where an employee is in need of support for their mental health during the period of suspension, employers should inform the suspended person of the available resources and encourage them to make use of these. These will depend on the organisation, but often include an internal mental health representative, an employee assistance programme (EAP) or trade union. Employees could also make use of external specialist services such as MIND.

It can be beneficial for managers and HR to undertake mental health training, to understand their duties, how they can best provide support and the resources and specialist services to signpost employees to.

 

What an employee cannot do while on suspension

If the organisation has a disciplinary or suspension policy stating what employees are not allowed to do while on suspension, both the employee and the employer should follow these rules.

Employees who are suspended typically have their access to their place of work and organisation’s systems withdrawn temporarily. However, there can be some circumstances when having some access is appropriate, for instance, if they have to go to a meeting to discuss the investigation.

Employers frequently request that the suspended employee refrain from discussing the investigation with colleagues, so as to maintain confidentiality and safeguard the investigation. However, it would usually be reasonable for the suspended employee to speak with colleagues about matters other than the investigation.

 

How long can you suspend someone for?

According to ACAS, any suspension should be as brief as possible and last no longer than is required. As such, you should conclude the investigation as soon as possible.

Any delays in the procedure should be communicated to the employee.

If circumstances change and keeping the employee out of the firm is no longer required, the individual’s return to work, even in a limited capacity, should be explored.

Of course, this is exceedingly fact-specific. Any suspension, however, should be as brief as possible and kept under review, as recommended by the Acas Code. When an employee is suspended, they should be advised of the expected length of the suspension and when it will be reviewed. Subject to any confidentiality limitations, the employee should be kept informed of the investigation’s timeframe and progress on a regular basis. Employers should also make sure that the suspended employee is well-supported by someone who isn’t involved in the investigation, and that they have a point of contact throughout the process if they have any questions or concerns.

We would normally advise that, if a suspension is considered necessary, the employer conducts the investigation as swiftly and efficiently as possible to reduce the amount of time the employee is suspended. This is especially problematic when there is a criminal or regulatory aspect to the situation.

Importantly, the employee should ensure they remain available to return to work, as the employer may end the suspension at any time.

 

Pay & holiday during suspension

Unless there is a contractual right to suspension without pay, an employee who has been suspended is entitled to full pay and benefits for the duration of their suspension.

The individual under suspension should continue to receive any bonuses or gym memberships specified in their contract in addition to their regular income. An employer may face legal action if they lower or stop a worker’s salary while they are under suspension; this could even be the case where there is provision within the employment contract allowing pay and benefits to be affected by suspension. Taking legal advice before withholding pay is recommended to avoid legal complaints.

It is also advisable to take advice if the employee is sick while on suspension, to confirm what they are entitled to. If their employment contract says they should receive full pay while suspended, this may also apply even if they are sick. In this case, paying them statutory sick pay (SSP) under the organisation’s sick pay policy give rise to a claim for unlawful deduction from wages if the contract grants the employee a right to full pay during suspension

Therefore, the employer may want to address the possibility of an employee being signed off sick while they are on suspension and the terms that will apply in such a situation in the contractual documents from the beginning.

The employee can request annual leave in the usual way while they are suspended, provided the employer approves the request. The employer retains their right to refuse or cancel annual leave requests, ensuring they give the required notice. However, it is best to consider the impact of refusing or cancelling annual leave on relations with the employee if, for example, they have already booked a holiday and made travel plans.

 

If the employee disagrees about suspension 

If the employee disagrees with the decision to suspend them, they should follow the organisation’s complaints procedure. This would typically involve making an informal complaint, and if not resolved, escalating to a formal grievance. Employees who are members of a trade union may also seek advice from their representative on their options in the circumstances.

The employer has to follow a fair and lawful grievance procedure or risk tribunal claims.

 

Risks when suspending an employee

When imposing the suspension, employers should be clear that it does not imply that they have found the employee to have done something wrong. The suspension should be as short as possible and the employer should keep the employee informed of the investigation’s status on a frequent basis. Additionally, all parties involved should, as far as possible, maintain confidentiality about the suspension and agree with the employee what will be said.

Employers may be tempted to take additional steps against the suspended employee, such as restricting their email access or deleting their access pass. These kind of measures are generally allowable, but employers should consider them carefully before using them and be confident that there are reasonable grounds for such action, eg. where there is a specific risk to business interests.

When taking the decision to suspend an employee, employers should be prepared for their decision to be questioned and scrutinised, and to possibly become the subject of a claim brought by the suspended employee. Suspension, regardless of the grounds cited for the employee’s absence in the workplace, is likely to harm the employee’s reputation and may compromise the confidentially of an investigation.

In the absence of a stated contractual right to suspend, the employee could argue that the suspension itself is a breach of contract because they have an inferred right to work. Where the employee’s suspension will prohibit them from earning a commission or other kinds of remuneration, they need to work to maintain their public reputation, or they need to work to exercise their professional abilities, an implied right to work is more likely to exist.

Even if the employer has a contractual right to suspend, an employee may resign in response to the suspension, claiming that the suspension and/or the way in which it was carried out violated the implied term of trust and confidence, and that they were thus constructively dismissed. The employee could also argue that any suspension was based on a protected characteristic or on whistleblowing issues they have expressed in the past, especially if the decision to suspend was applied inconsistently in the past. The most effective approaches to limit this risk are to ensure that the suspension was justified and reasonable, to document the reasons, and to try to conduct preliminary investigations before making a decision.

 

Ending the suspension 

If the investigation results in disciplinary action, you must decide whether to continue the suspension throughout the remainder of the procedure.

If no further action is taken, you should bring the suspension to an end with immediate effect. You should also discuss with the individual whether they have any questions or worries about returning to work, and you should also agree what you will tell colleagues.

 

Best practice for employers 

Consider alternatives to suspension 

Before deciding to suspend someone, ensure you have considered all possible alternatives and document the reasoning as to why suspension is a reasonable course of action.

 

Written communications 

Ideally, you should acknowledge the sensitivity of the situation by informing the employee of their suspension in person, or if this is not feasible, by video or telephone call. This way, you can address their initial concerns and questions.

While it is not a legal obligation to notify the employee in writing, it is best practice to follow up the initial suspension conversation with written confirmation. The written notification should make clear to the employee that the suspension is to allow the investigation to take place and conclude promptly and without delay. The letter should also provide confirmation that suspension is not a disciplinary measure; the terms of the suspension; details of who to contact during the period of suspension; and any restrictions or responsibilities the employee has to comply with during the suspension.

 

Record keeping 

Throughout the process, record keeping should be a priority for the employer. Managers and HR should be trained to document conversations and decision-making to be relied on in the event of any potential future complaints. In particular, the employer should record the reasons for deciding to suspend the employee, and detail the alternatives that were considered and why these were not appropriate in the circumstances.

 

Reviewing the suspension 

Under the ACAS guidance, suspension should only be as long as is absolutely necessary. This means that if the suspension can be brought to an end sooner, for example due to developments in the investigation, then the employer should act to end the suspension early and bring the employee back into the workplace as soon as possible.

 

Employee entitlements 

Another area of risk is ensuring the suspended employee receives their full entitlements to pay and leave. Employees who are suspended are entitled to receive full pay and usual benefits, unless their contract of employment states otherwise.

 

Ensure compliance 

Employers should refer both to their organisation’s relevant policies – eg disciplinary – as well as ACAS guidance on suspensions and code on disciplinaries and grievances. The disciplinary procedure must be lawful and fair, and the suspension cannot be used as a form of disciplinary action. Should a tribunal claim be pursued, the employer risks uplift in compensation if it fails to follow the correct procedure.

 

Support the employee

The ACAS guidance makes several references to the employer’s duty to support employees’ mental health and wellbeing while on suspension. This includes being clear on the meaning and implications of the suspension, being clear on the process and next steps, and being clear on the support that is available for the employee.This will require training for HR and managers to both handle suspensions correctly – such as maintaining contact with the employee during the period of suspension – and to understand what support services they should make the employee aware of.

 

Need assistance?

DavidsonMorris’ employment lawyers work with employers to support with all aspects of workplace investigations, disciplinaries and grievance procedures, including the use of suspensions. We can advise on specific matters to help your organisation ensure compliance with your legal obligations while protecting your best interests. Through our fixed-fee employment law service, Triple A, employers can access unlimited employment law advice to support with workforce management. For expert advice and support, contact us.

 

Suspending an employee FAQs

Can an employer suspend an employee?

It’s perfectly legal to suspend an employee, either where their contract of employment allows for this, or there’s some serious reason to justify this, for example, pending an investigation into allegations of gross misconduct that give rise to safeguarding concerns.

What is the procedure to suspend an employee?

When suspending an employee, this should normally be on full pay and any period of suspension made as brief as possible — whilst allowing for the investigation and any disciplinary hearing to take place. It should also be kept under review.

What does it mean to suspend an employee?

Suspending an employee is where they continue to be employed, but are asked not to attend work, typically whilst a serious disciplinary matter is investigated against them. The employee may also be asked to refrain from having contact with colleagues.

Can you be suspended from work without a warning?

You can be suspended from work with immediate effect, for example, in the context of serious allegations of misconduct against you. However, you must still be notified in writing of the decision to suspend you and the reasons for this.

Last updated: 26 October 2022

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