Our clients often ask us for practical tips on commonplace issues that occur in the workplace. One such request focuses on suspending employees at the outset of a disciplinary process for misconduct. With that in mind, Julie Sabba, an associate in the Employment team, sets out guidance on how to fairly suspend an employee, whilst minimising the risk of Employment Tribunal claims.
A suspension is a period of time when an employee is required by their employer to abstain from their normal work. If the employee usually works at the employer’s premises, and/or out and about with customers, this means they will not attend their normal place of work during the suspension. If the employee normally works from home, it means that they will refrain from undertaking the normal tasks and duties associated with their work.
Suspension is used as a protective measure while the employer investigates allegations of serious misconduct against an employee, and the employer has reason to believe that the employee’s continued presence in the workplace or performance of duties may:
• impede the investigation into the allegations, or
• present a serious risk to the interests of the business, its customers, or other employees.
In some circumstances, an employee may be able to claim their employer has breached their contract by suspending them.
The implied obligation to provide work
As long as the employee is paid, there is no general implied duty to provide work that applies in all circumstances. Rather, whether there is a right to work depends on the terms of the employment contract.
The implied duty of trust and confidence
There is an implied term in every employment contract that the employer must not enforce contractual provisions on unreasonable grounds. 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.
Custom and practice/disciplinary policy guidance
Checking the company’s past practice (if any) on suspension is also advisable, to ensure that suspension for these kinds of allegations is normal and that, if not, there are distinguishing features about this situation which make suspension appropriate. This minimises the risk of an employee successfully arguing that the right to suspend is being used in such a way that it:
• breaches the implied duty of trust and confidence, or
• constitutes unlawful discrimination in relation to any protected characteristic
Alternatives to suspension should be considered, eg a temporary change in work location or duties while the investigation is carried out, or a period of leave. Care however should be taken that any changes are temporary, and could not be construed as a demotion, or in some way humiliating to the employee, to minimise the risk of the employee successfully arguing that the change is a breach by the employer of the implied duty of trust and confidence.
When is it appropriate?
Where a period of suspension with pay is considered necessary, this period should be as brief as possible and kept under review, and that it should be made clear that the suspension is not considered a disciplinary action.
Most disciplinary situations will not require suspension, and it should only be considered exceptionally if there is a serious allegation of misconduct and:
• there are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation
• working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or other business interests if the employee remains in the workplace, or
• the employee is the subject of criminal proceedings which may affect whether they can do their job
Right to be accompanied
There is no legal right for an employee to be accompanied to a suspension meeting, however consideration should be given to allowing an employee to be accompanied if this is a reasonable adjustment for an employee with a disability.
When to suspend an employee
• During an investigation or when an allegation comes to light – It will often be necessary for an employee to be suspended as soon as an investigation has unearthed a serious matter that will be, or is likely to be, the subject of disciplinary action, even though the full investigation into that matter has not been completed. Continuing the investigation is not a flaw in the proceedings and does not render them unreasonable, provided that the employee is given a full and fair opportunity to engage with any new charges or new material which might emerge as a consequence of that process. That opportunity may be at the disciplinary hearing itself.
• Don’t be hasty – Before suspending an employee, the employer should undertake some preliminary investigations in order to establish if there is evidence to substantiate the allegations and justify the suspension. An ill-conceived or hasty suspension can result in a breach of contract claim by the employee.
• But don’t delay – Set against that, an unnecessary delay in suspending or a failure to suspend an employee, when there are allegations of gross misconduct pending against the employee, may prejudice the employer’s case if the employee is later dismissed without notice and the employee submits a claim for unfair dismissal to the employment tribunal. It can be hard to demonstrate that dismissal without notice was an appropriate disciplinary sanction if the employee was allowed to continue in the performance of their duties right up until the date of the dismissal.
Who should carry out the suspension?
In theory, anyone in the company with the employer’s authority to undertake the suspension may carry it out. In practice, the individual carrying out the suspension should have received proper training and should also be significantly senior to the employee who is to be suspended.
How to suspend an employee
It is important that the suspension is undertaken as a protective measure and is not conducted in the manner of a disciplinary sanction or in any manner likely to result in a breakdown of the mutual obligation of trust and confidence.
For this reason, suspension should always be with pay and the manner of the suspension should be carefully handled in order to minimise distress to the employee and to preserve the working relationship as best as possible.
Suspension can leave individuals feeling prejudged, demotivated and devalued. It should therefore only be used after very careful consideration.
The employer should:
• always make it very clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction
• remind and reassure the individual that a fair procedure will follow in which their point of view will be listened to and fairly considered
When deciding when and how to communicate a decision about suspension, employers should bear in mind that some individuals may find it extremely distressing to be told they are suspended. It is good practice to encourage a suspended employee to access some immediate support and to offer help to do this, eg by offering to contact a colleague, friend or relative of their choosing to meet them immediately.
The employer should keep the suspension confidential wherever possible. Confidentiality should be maintained regarding the details of the suspension, and information relating to it should only be provided on a ‘need-to-know’ basis.
The person suspending the employee should convene a meeting with them. It is usually most convenient to do this just before work usually starts, or first or last thing during the working day, or over lunchtime, as the workplace is usually quietest at those times. At the meeting the person suspending the employee should explain:
• that they are to be suspended from work with immediate effect
• the reason for the suspension
• that it does not mean they think the employee is guilty
• that the suspension is not considered a disciplinary sanction
• an outline of the allegations under investigation
• the likely duration of the suspension
• the details of what they may and may not do while on suspension
• the employee’s entitlement to pay and benefits during suspension
• the possible outcomes following suspension (this is usually either reinstatement into their normal pattern of work or a requirement to attend a disciplinary hearing to discuss the allegations in more detail)
• that the details of the suspension will be confirmed in writing
If the employee works as part of a team, or is responsible for the management of other people, or in some other way their absence will impact on others, it is also good practice to agree:
• how their absence should be communicated, and
• how a temporary handover of particular responsibilities, tasks or projects should be put in place
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.
Throughout the suspension meeting, the person suspending should endeavour to remain calm and reassuring but at all times professional; such meetings are obviously delicate and need to be handled with great sensitivity. If the manner of the suspension is too brusque or harsh, this can contribute to a breakdown in the employment relationship, making it difficult for the employee to integrate back into the working environment if the allegations do not in fact lead to any disciplinary measures.
Once the suspension meeting is concluded, the person suspending the employee should usually accompany them while they gather any personal belongings and leave the premises. This should be undertaken as discreetly as possible, when the workplace is quiet.
In addition to communicating, as necessary, the employee’s absence, and putting in place arrangements to cover their work (as discussed above), measures may need to be put in place to restrict their access to the employer’s IT systems.
Confirm in Writing
The details of the suspension as outlined in the suspension meeting must then be confirmed in writing to the employee. This letter should emphasise that the act of suspending the employee does not in any way imply that they are guilty of any misconduct, or that any decisions have been made, but rather is a purely protective measure while the employer investigates the allegations.
• keep regular contact with the employee throughout their suspension
• name a person, such as the employee’s manager, whom they can contact if they have any concerns
• as well as encouraging the employee to access immediate support when they are told about their suspension (as mentioned above), consider the employee’s wellbeing and mental health
The length of a suspension
In most circumstances the period of suspension should be as brief as possible and kept under review. It should not exceed any maximum period that may be set out in the contract of employment or the employer’s disciplinary procedure.
In the event of an investigation being particularly complicated, it may be acceptable to extend the period of suspension (eg if during the investigation new evidence of misconduct comes to light which requires further investigation) but the reasons for any extension should be properly reviewed and documented so that the employer can justify its necessity. The employee should also be informed, in writing, of any extension to the period of suspension, and the reason(s) why the employee considers the extension necessary.
In one particular case, the fact that a suspended employee had addressed the allegations against them at a subsequent meeting, but the employer had not then lifted the suspension, was one factor that led the employment tribunal to conclude that the employer had breached the contract of employment.
An excessively long period of suspension makes it less likely that the employee will be able to integrate back into the working environment if the allegations against them do not in fact lead to any disciplinary measures.
Pay during suspension
During any period of suspension an employee must be provided with the pay and benefit entitlements to which they would have been entitled if they had not been suspended. The withholding of pay and benefits may make it more likely that the suspension will be viewed as an impermissible disciplinary sanction and could lead to accusations that the disciplinary procedure was unfair.
Record keeping requirements
Accurate written records should be maintained of:
• the reason for the suspension
• the duration of the suspension, including any reviews that were conducted in relation to it
• all communication that takes place with the employee during the period of suspension
• the outcome of the suspension
These records will be important in the event that:
• the employer later needs to defend a breach of contract claim by the employee, and/or
• the employee suffers stress as a result of the suspension and the employer needs to manage that situation
These records should be retained for as long as reasonably required (and no longer), in accordance with the employer’s data protection policy and procedures.
Challenging a suspension
An employee may seek to challenge their suspension, eg because of the effect that it may have on their work and their reputation. Employers should therefore ensure that in suspending an employee they comply with both the express terms of the particular contract and also with the implied term of trust and confidence.
If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or email@example.com, or follow us on Twitter @HRHeroUK.