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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.

 

Reasons for suspending an employee 

Suspension is frequently used as part of an organisation’s disciplinary procedure to allow for an 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.

 

Suspension as an alternative to dismissal following disciplinary procedure

Employers may choose to suspend someone without pay for a period of time rather than terminating them outright. Employers must ensure that they have the legal right to suspend employees without pay. They could risk a Breach of Contract claim if the right isn’t explicitly included in their employment contract.

 

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 artic;e, we focus on the question of suspend an employee during an investigation.

 

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.

 

Keeping the employee informed

You should notify the employee as quickly as possible after making a decision and follow up in writing, explaining:

  • That the employee is suspended but not for disciplinary reasons (it is no longer essential to clarify that the suspension is a “neutral act”).
  • The circumstances surrounding the suspension (including why you believe it is necessary)
  • What the employee’s rights are during suspension who the employee should contact during suspension how long the suspension is scheduled to last (most likely either HR or their manager).

 

Avoid expressing anything that implies you’ve already reached a conclusion about the employee’s complaints.

 

Suspending an employee under investigation 

Someone who is facing disciplinary action may be placed on leave for a length of time while the employer investigates the alleged offence. Employers should exercise extreme caution when considering whether or not to suspend someone in this case. They should initially explore allowing the employee to take a period of yearly vacation or other leave of absence. It may also be preferable to temporarily relocate the employee to another part of the company.

The first point to evaluate is whether the employee’s suspension is justified and proper, or if it is a knee-jerk reaction. Suspension may be essential 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. Are there any alternatives to suspension that would achieve the same aim if there is a solid basis for the employee to be removed from their current environment? While the investigation is ongoing, the employee may be transferred to a new function, department, or be required to work from home. Suspension should only be utilised as a last resort due to the reputational consequences. These decisions will need to be carefully documented and explained to the employee in issue, including the examination of alternatives and the reasons for rejecting them.

Before making the decision to suspend, the employee should have had a chance to comment, and the employer should have obtained as much information as possible about the charges. While we understand that an employer cannot conduct a full investigation prior to suspending an employee, the employee or other key witnesses may be able to reassure the employer that an alternative to suspension is possible or that there is clear evidence that the allegations are unfounded, thereby altering the risk profile.
What are the main dangers of suspending an employee while an investigation is ongoing?

While we always recommend informing the employee, preferably in writing, that the suspension is not a disciplinary action, this does not eliminate the danger that the decision to suspend will be questioned or the subject of a claim by the suspended employee. Suspension, regardless of the grounds cited for the employee’s absence in the workplace, will surely harm the employee’s reputation and may compromise the confidentially of an investigation. Suspension is not necessarily a “neutral act,” according to the courts.

In the lack 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 quit 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 fired. The employee could also argue that any suspension was based on a protected feature they possess 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 proper, to document the reasons, and to try to conduct preliminary investigations before making a decision.

 

How long can you suspend someone for?

According to Acas, any suspension should last no longer than is required, thus you should wrap up the investigation as soon as feasible.

Meanwhile, 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.

 

Entitlements 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.

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 possible, but companies should consider them carefully before using them. They should be confident that there is a precise and justifiable rationale for each, rather than just doing it because it’s the right thing to do.

Suspending an employee who is facing disciplinary action can be a valuable tool for employers to safeguard their business and investigations, and it is frequently justified.

Recent case law, on the other hand, suggests that suspending an employee should not be taken lightly or without careful analysis of why it is essential and how it will be carried out. Failure to do so exposes an employer to significant risks and leaves them vulnerable to employee claims.

 

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: 19 May 2022

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