How and When Can an Employee Be Suspended From Work?

Introduction

When it comes to misconduct, for a dismissal to be fair a disciplinary process must be followed, which includes a full and thorough investigation. How the employer has investigated the matter will be relevant to whether or not they acted reasonably.

In some cases, it may be appropriate to suspend the employee from work during the investigation. However, given the serious implications of suspension for an employee, including for their morale and professional reputation, we must ensure that the circumstances of the case justify it, and that it is necessary to ensure a fair investigation. Suspension will not be necessary in every case.

The Acas code of practice on disciplinary and grievance procedures

The Acas code of practice on disciplinary and grievance procedures is the guide we must follow when suspending an employee and it states that an employer should; pay a suspended employee during the period of suspension, keep the suspension as brief as possible and keep the suspension under review. The employer should make clear that the suspension is not disciplinary action in itself.

The non-statutory guidance that accompanies the code states that suspension may be necessary, for example: where relationships have broken down;

• in cases of gross misconduct;
• where there is a risk to an employee or company property, or responsibilities to other parties; or
• in exceptional cases, where there are reasonable grounds to suspect that evidence has been tampered with or destroyed, or witnesses pressurised.

When Can you Suspend an Employee?

Employers must have sufficient justification to suspend an employee and it should only be used where there is no other option in order to protect the business or the investigation. It is not appropriate to suspend simply because an investigation is on-going. If it is necessary to remove the employee from, for example, contact with particular colleagues or clients, you should consider if suspension can be avoided by using a less drastic measure, which could include a temporary change to the employee’s duties or department.

Where the circumstances of a case justify suspension, you must advise the employee of the reason for the suspension, how long it is likely to last, and that it is a neutral act that does not indicate guilt. The employer should make clear to the employee that the suspension is not disciplinary action in itself, and that disciplinary action will not necessarily follow.

Are Employees Paid Whilst Suspended?

The employee should suffer no detriment as a result of a decision to suspend, and as such, the employee should be fully paid throughout the suspension.

Any contractual procedures or terms relating to suspension must be complied with throughout.

What Terms Should Be Put In Place During the Suspension?

It is usual for the employer to advise the employee that they should not contact any colleagues during the suspension, except any union representative advising on the process. The employer should consider any requests by the employee to be allowed to contact colleagues if this is necessary in connection with preparing their response to the disciplinary case. In practice, an employer cannot stop an employee contacting colleagues outside of work but it should warn them that any attempt to influence colleagues involved in the investigation will be dealt with under the disciplinary procedure.

You should, as far as possible, keep the suspension, and the reason for it, confidential so as not to cause damage to the employee’s reputation, particularly as the investigation will not necessarily result in disciplinary action.

How Long Can an Employee be Legally Suspended For?

The “Acas code of practice on disciplinary and grievance procedures”, states the period of suspension should be kept as brief as possible,. We must therefore ensure that once an employee is suspended everything is being done to progress the investigation as quickly as possible.

Throughout the investigation, the decision to suspend an employee should be kept under review. The suspension should be lifted immediately if the circumstances of the case no longer justify it.

Are There Any Risks to Suspending an Employee?

Yes, whilst suspension is intended to be a neutral act, the reality is that it isn’t. Especially in a small team, people will often know what is going on or fill in the gaps of information - it can therefore be very difficult for someone to return to work following a period of suspension. We therefore see cases of long term sickness with mental health problems resulting from suspension, leaving employers with a new challenge.

A decision to suspend where there is not reasonable justification could lead to an employee resigning and claiming constructive dismissal as this is a breach of the implied term of trust and confidence. There could be further risks in some industries and roles where being present is required to maintain professional skill or earnings. We therefore strongly recommend taking advice prior to making a decision to suspend - you can talk to a qualified HR consultant by booking at call now.

Article last updated: 21 February 2023