A suspension is a temporary removal of the employee from their duties and workplace, typically with or without pay, pending an investigation or as a disciplinary action. Where an employee typically works from home, it means the employee will refrain from undertaking their normal tasks and duties associated with their work (it may be that the employer has to restrict or prevent access to the company’s systems). Suspension is commonly used by employers in situations where there is an allegation of serious misconduct, performance issues, or other concerns that require investigation before a final decision is made.
It is a “protective” measure where the employer has reason to believe that the employee’s continued presence in the workplace or performance of their duties may (i) impede the investigation into the allegations, or (ii) present a serious risk to the interests of the business, its customers, or other employees.
Suspension does not mean an employee has done anything wrong and should not be used to discipline an employee or in a way that is likely to result in a breakdown of the mutual obligation of trust and confidence. Employers should also be alive to the fact that suspension is stressful for an employee and consider the wellbeing and mental health of the employee when deciding to suspend.
What should an employer consider when deciding to suspend an employee?
To help decide whether suspension is necessary, an employer should consider:
- what information is available so far
- the wellbeing of the employee under investigation and how their mental health might be affected if they are suspended
- the risks if the employee is not suspended, i.e. risk to others at work, the business or the investigation
- how serious those risks are
- any alternatives to suspension
There may be instances where suspension (with pay) is necessary whilst investigations are carried out. However, most disciplinary situations will not require suspension and it should only be considered if there is a serious allegation of misconduct. The employer should consider (i) if there are reasonable grounds to believe the employee might seek to tamper with or destroy evidence, influence witnesses or the investigation; (ii) working relationships have severely broken down to the point where there is a genuine risk to other employees, customers or business interests if the employee remains in the workplace; and/or (iii) the employee is subject to criminal proceedings which may affect their ability to do their job.
Legal considerations on suspension
An employee might seek to argue that the employer has breached their contract of employment by suspending them because of the implied obligation to provide work, or implied duty of trust and confidence.
Implied duty to provide work
Provided the employee is paid, there is no general implied duty to provide work and any right to work would depend on the terms of the contract of employment. For example, an implied duty to provide work may exist where workers are dependent on the publicity (i.e. actors) or workers need to exercise their skills (i.e. doctors/surgeons).
Implied duty of trust and confidence
There is an implied term in every contract of employment that the employer must not enforce contractual provisions on unreasonable grounds (i.e. not to conduct themselves, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee). This means that, even if the employer has an express contractual right to suspend the employee, it must only exercise that right on reasonable grounds and for no longer than is necessary.
Where an employee claims the employer has breached the implied duty of trust and confidence by virtue of invoking a suspension, an employer will need to demonstrate that (i) it has an express contractual right to suspend the employee; (ii) sufficient investigations were conducted before the employer took the decision to suspend; (iii) the suspension was conducted in accordance with the procedures detailed in the employer’s disciplinary procedure; (iv) the period of suspension was not excessive and was kept under review; and (v) the suspension was utilised as a protective measure and not as a disciplinary sanction.
The employer should check its past practice (if any) on suspension to ensure that suspension for the allegations in question is “normal” (i.e. a reasonable action in the context of that specific employer) and any distinguishing features in that particular case which make the suspension appropriate.
Alternatives to suspension
An employer should consider whether there are any alternatives to suspension, including:
- asking the employee to take a period of leave whilst the investigation is carried out
- changing shift patterns
- change in work location, i.e. work from home, different site or different part of the organisation
- reallocating the employee to different customers, or reducing their workload from a particular job/task
- removing access to the company’s systems, i.e. finance system if the investigation relates to missing money etc.
Any changes should be temporary, and an employer should take care so that such changes could not be construed as a demotion, or in any way humiliating to the employee. The reasons for any changes should be kept confidential and the employee should be informed of what colleagues will be told about the temporary change.
Steps to take when suspending an employee
If an employee is suspended, the suspension should be on full pay unless, exceptionally, their employment contract provides otherwise.
When informing an employee that they will be placed on suspension, the employer should:
- explain the reason for the suspension (preferably face to face)
- make it clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction
- reassure the individual that a fair procedure will follow in which they will have opportunity to put across their point of view
- set out what the next steps will be
- confirm they will continue to get their pay and benefits during suspension
- explain their responsibilities during suspension, i.e. what they can and cannot do
- given them a copy of suspension policy, if there is one
- check that their contact details are up to date, including any emergency contact
- appoint someone they can contact if they have any concerns, i.e. manager or HR etc.
- let them know what support (internal and external) is available and encourage them to use it
- agree with the employee how regularly to contact them during suspension
- that the details of the suspension will be confirmed in writing
Once the suspension meeting has concluded, the person suspending the employee should usually accompany them while they gather any personal belongings and leave the premises, preferably when the workplace is quiet to ensure it is as discreet as possible.
A formal letter confirming the terms of the suspension should then be sent to the employee. There is no “hard and fast” rule about how much information must be provided to the employee regarding the investigation, but guidance suggests that an employer should provide as much information as the employer is able to do so to enable the employee to understand the situation/allegations and, more particularly, the reason for the suspension.
It is advisable that the employer takes a neutral line if colleagues or clients query the whereabouts of the employee. For example, putting out a message to the team (and perhaps to relevant customers, as necessary) that states that the employee ‘has taken leave at short notice to deal with a personal matter’ can be an appropriate way to avoid the employee any embarrassment.
Length of suspension
Suspension should be as short as possible and kept under regular review. Check the disciplinary or suspension policy to ensure that any period of suspension does not exceed any “maximums” stated. Where the investigation is more complex than initially envisaged, an employer may be able to extend the period of suspension where it is justifiable, but the reasons should be reviewed and documented. Any extension will also need to be communicated to the employee in writing stating the reason(s) why the employer considers such extension necessary.
Bringing the employee back to work
If, following the investigation, no further action is to be taken, the employer should end suspension as soon as possible and discuss with the employee when they will return to work, what colleagues and staff will be told, any questions or concerns the employee has about returning to work and any support available.
If, however, the investigation leads to a disciplinary procedure, the employer will need to decide whether to continue the suspension whilst it carries out the disciplinary procedure.
Can an employee challenge the suspension?
Yes, potentially. Where an employee does not agree with their suspension of how the suspension has been handled, they should raise the issue with their employer informally and then if not resolved, they can raise a formal grievance. The employee may also seek advice from a trade union if they are a member of one.
In extreme cases, an employee may apply for an injunction seeking their reinstatement2 on the basis that the suspension was a breach of an express term of their contract or a breach of the implied term of trust and confidence.
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Reference:-
[1] ACAS guidance