When an employee’s conduct is likely to be gross misconduct employers will often automatically suspend them – why would you want someone at work who’s just thrown a chair across the room?
But no matter how serious the conduct might seem, it’s important not to suspend as a knee jerk reaction, you could be inadvertently creating circumstances for a successful unfair or constructive dismissal claim.
When should I suspend the employee?
Most disciplinary allegations will not require suspension. ACAS guidance states that suspension should never be an automatic approach for an employer when dealing with a potential disciplinary matter.
Knee-jerk suspensions should be avoided and you should ensure you can demonstrate that you applied your mind to the issue of suspension and had reasonable and proper cause for deciding to suspend in the circumstances (and that these reasons stand up to scrutiny).
Suspension can amount to a breach of the implied term of trust and confidence where there is not reasonable and proper cause to suspend. That question of whether or not there is reasonable and proper cause to suspend is highly fact-specific.
How will I know if it is necessary or not?
Suspension 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 and/or sway the investigation into the allegation
- there is a risk to other employees, property or customers
- 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. You should also consider whether you have the contractual right to suspend the employee, if not you could be in breach of contract.
What other options might there be?
Alternatives to suspension could include the employee temporarily:
- being moved to a different area of the workplace
- working from home
- changing their working hours
- being placed on restricted duties
- working under supervision
- being transferred to a different role within the organisation (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.
What is the correct process for suspending?
An employee should be informed of the fact that they have been suspended as soon as possible. Any conversation to this effect should be followed up in writing promptly. The letter should, among other things:
- Make it clear that the employee is suspended and what the reason for the suspension is. Set out how long it is anticipated the employee will be suspended for.
- Point out that the purpose of the suspension is to investigate and is not an assumption of guilt.
- Explain the employee’s rights and obligations during the period of suspension.
- State that the employment contract continues but that the employee is not to report to work and must not contact colleagues, clients, customers or suppliers.
- Notify the employee of a point of contact, such as an HR manager, during their period of suspension.
Suspension should not be seen as a form of punishment for the employee; instead it should be regarded as a means of carrying out an investigation as quickly and effectively as possible.
Suspension should always be as short as possible and kept under review.
An employee should be kept regularly updated about their suspension, the ongoing reasons for it, and how much longer it is likely to last. It is important that the employee is supported during this time and is able to contact someone at the workplace to discuss any concerns they may have.
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