Suspending an employee

A recent court case where an employee successfully argued her suspension was unreasonable concluded with the High Court ordering a mandatory interim injunction, letting her resume most of her normal duties at work while the employer’s investigation was carried out.

Clearly in this case, the employer acted unreasonably and with unseemly haste but what should they have done and how can other employers ensure that if they do have to suspend an employee, they do so in a way that will ensure they do not face legal repercussions further down the road?

rradar solicitor Richard Beschizza looks into the options.

What is suspension in the context of a disciplinary procedure?

Suspension is where an employee continues to be employed but does not have to attend work or do any work. There should be no assumption of guilt associated with a suspension and it must not be used as a disciplinary sanction. It should usually only be considered if there is a serious allegation of misconduct and:

• working relationships have severely broken down;

• the employee could tamper with evidence, influence witnesses or sway the investigation into the allegation;

• there is a risk to other employees, property or customers; or

• the employee is the subject of criminal proceedings which may affect whether they can do their job.

An employer considering suspending an employee should think carefully and consider all other options. Even where there are reasons to consider suspension, a temporary adjustment to the employee's working arrangements can usually remove the need to suspend.

Those adjustments could include the employee:

• being moved to a different area of the workplace;

• working from home;

• changing their working hours;

• being placed on restricted duties;

• working under supervision;

• or being transferred to a different role within the organisation.

If this last option is adopted, the role should be of a similar status to their normal role, and with the same terms and conditions of employment.

Only if all other options are not practical may suspension become necessary.

A suspension, however, can still have a damaging effect on the employee and their reputation. Therefore, if a suspension is necessary, the suspension and the reason for it should be kept confidential, where possible. If it is necessary to explain the employee's absence, discussions should be held with the employee about how they would like it to be explained to colleagues and customers.

Other considerations could include whether it is necessary to:

• escort the employee from the workplace;

• remove the employee's workplace pass and IT access; and

• ask the employee to not contact other employees during the investigation.

Employees should usually receive their full pay and benefits during a period of suspension. An employee suspended due to a serious allegation of misconduct must receive their full pay unless:

• they are not willing or able to attend work, for example because they are ill;

• or there is a clear contractual right for an employer to suspend without pay or benefits.

An employer should seek legal advice, however, if they are considering suspension without pay as an unpaid suspension is more likely to be viewed as a punishment and could lead to allegations that the disciplinary procedure was not fair.

The suspension letter

If suspension is necessary, an employee should be provided with a suspension letter which includes:

• the reason for the suspension and how long it is expected to last;

• their rights and obligations during the suspension, for example, that they should be contactable during normal working hours;

• a point of contact, such as a manager or HR, and their contact details for the employee during their suspension;

• a statement that the purpose of suspension is to investigate and is not an assumption of guilt.

During the suspension

A period of suspension should be kept as brief as possible and regularly reviewed to ensure it is still necessary.

A suspended employee will usually still be expected to be contactable during normal working hours and available to attend any meetings and interviews that are necessary concerning the investigation. Additionally, if the employee wants to go on holiday during their suspension, they must still make a request to take annual leave.

What the employee needs to know

An employee should be kept regularly updated about their suspension, the ongoing reasons for it, and how much longer it is likely to last. Regular contact should be maintained between the employee and their manager or point of contact during the suspension. It is important that the employee is supported during this time and can contact someone at the workplace to discuss any concerns they may have.

At the end of the suspension

The end of the misconduct investigation normally coincides with the employee either returning to the business to face disciplinary action if there is enough evidence to proceed with the next stage of this process, or resuming work if the investigation decides that there is no reason for further action.

Despite the reasoning for suspension, an employee may sometimes feel aggrieved about the matter and worried about returning to work. An employer should, therefore, arrange a return-to-work meeting on the employee's first day back or as early as possible. It can provide an opportunity to discuss and resolve any concerns. The meeting could be arranged away from the workplace or somewhere at work in private.

Right to be accompanied at the disciplinary hearing

If an employee is invited to a disciplinary hearing but still suspended, an employer should highlight that the employee still has a right to be accompanied by a trade union rep or work colleague. If an employee wants a work colleague to accompany them or be a witness in their defence, they should:

• write to their employer and seek permission to contact the individual;

• explain why contact is necessary during their suspension; and

• wait for confirmation from the employer that they are allowed to contact the individual.

Only in exceptional circumstances should an employer consider refusing a request. For example, where the work colleague is in genuine fear of the suspended employee.

Implications of the suspension

An employee with concerns about how their suspension has been handled should try to resolve the matter informally first. Many issues can be resolved quickly by having an informal conversation with a manager or HR.

If the matter cannot be resolved informally, an employee could make a formal grievance. This should be made in writing and set out the problem or concern.

Only after exhausting an organisation's internal complaints procedures should an employee consider whether they may make a claim to an employment tribunal.

Can suspension be used in any other circumstances?

An employer has a general duty of care to its employees. They may therefore decide to suspend an employee on medical grounds if a health professional recommends that the individual concerned is unfit to work with a hazard such as display screen equipment. It may be found that following a relevant risk assessment, suspension is also necessary due to the risk to new or expectant mothers. As suspensions in these circumstances can be tricky to justify, getting legal advice is definitely recommended.

rradarstation

If, after reading this article, you have concerns over the way your business handles suspensions, why not talk to our rradarstation advisors? rradarstation is a resource available through the AXA MLP where policyholders can access rradar’s legal advisory team over the phone or by email and web gateway that provides over 2,000 articles, step-by-step guidance sheets, forms, sample letters and templates to download relating to running your business/organisation.