Legal Services for Employees and Employers
SUSPENSION FROM WORK
SUSPENSION
In some situations, an employer can consider suspending someone while carrying out a disciplinary or grievance investigation. An employer should not use suspension as the default option and should carefully consider this action on a case-by-case basis.
Once the employer has considered all the facts they may decide to one of the following:
- temporary change(s) to an employees working
- impose a suspension
- not suspend
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OPTIONS
In all circumstances, the employer should check if there is an alternative to suspending someone. They could arrange for an employee to temporarily:
- change shifts
- work in a different part of the organisation
- work from home
- work from a different office or site
- stop doing part of their job
- stop undertaking certain tasks
The employer should keep the reason for any temporary change confidential wherever possible. They should also discuss with the employee what they will tell others at work about the temporary change.
THINGS TO CONSIDER
Suspension can be stressful for an individual, so it is vital that the person making the decision to suspend considers the wellbeing and mental health of the relevant employee.
It can also have adverse effects on the employee/employer relationship. Hence any decision to suspend must be reasonable under the circumstances. This maybe to protect the following:
- the investigation
- the business
- other staff
- the person under investigation
A employer may view suspension as a 'neutral act', but employee may not. Hence making a reasonable decision which can be justified to the employee is vital.
ASSESSING THE RISK
There are many factors to consider when assessing whether it is reasonable to suspend an employee. These can include:
- Repeated offence - has the individual been warned about behaviour that led to this incident
- Risk to others - think about the duty of care to other employees
- Risk to the organisation - do the allegation reflect badly on the organisation if the employee remains at work?
- Risk to the investigation - if the employee remained at work would it jeopardise any investigation
- Seriousness of the allegation(s) - is there enough evidence to suggest a breakdown of trust and confidence between the employer and employee?
- Criminal - has a potential crime been committed?
This list is not exhaustive.
If a decision to suspend is not reasonable, there is a risk the employer could be breaking the employment contract. This could lead to legal action.
DECISION TO SUSPEND
Where a decision to suspend is appropriate the employer should:
- notify the employee (ideally this should be in writing)
- explain the reason for their suspension
- make it clear that suspension is not a presumption of guilt
- make sure the suspension is as brief as possible
- arrange how and when to keep in touch with the suspended person; and who their emergency contact is
- advise whether the suspension will be with or without pay (in accordance with the employees contract)
- explain their responsibilities during suspension, for example what they can and cannot do/say
- support their mental health and wellbeing
- carry out a fair investigation, in line with the ACAS Code of Practice on disciplinary and grievance procedures
CHAlleNGiNG THE DECISION
If an employee does not agree with their suspension they should raise the issue with the employer either informally or formally (by raising a grievance).
It's up to the employer to decide whether the suspension will continue or not.
In very rare situations, it may be possible for the employee to apply for an injunction to prevent your suspension. This type of action can be expensive and would generally only be considered where:
- The suspension breaches an employment contract
- The suspension throws doubt on the employees capability and reputation as a professional in their field
PAY DURING SUSPENSION
Where suspension is with pay, the suspended employee should usually continue to get their normal pay including any benefits or bonuses in their contract.
If an employer reduces or stops an employee's pay during suspension, the employee could take legal action. There is still a risk of this even if the contract appears to allow reduced or no pay during suspension.
Where an employer is considering not paying someone during suspension, it's a good idea to get legal advice.
SICKNESS
If the employee is sick, check the contract to see what it says about pay during suspension.
If the contract says an employee is suspended on full pay during suspension, this might apply even if they are sick.
TAKING A HOLIDAY
Taking a holiday during suspension may seem unusual, but if it helps with the employees mental health or was pre-arranged it may occur.
Suspended employees are generally expected to be contactable and available to attend relevant investigatory or formal meetings, hence if the employee wants to take a holiday, it should be arranged in the normal way by booking and taking Holiday leave.
However, the employer may have reasonable grounds not to agree to this. It is best for both side to discuss the matter.
If the employee booked a holiday before the suspension began, the employer must give sufficient notice before cancelling leave.
END OF SUSPENSION
If there's no need for further action, or the matter reaches a normal conclusion, the employer should end the suspension as soon as possible and discuss with the suspended person:
- when they'll return to work
- what to tell others at work when they return
- any questions or concerns they have about returning to work what support is available
It's good practice for the employer to put in writing that they have removed the suspension.
The employer and employee should also check that all the allegations and/or issues which led to the suspension have all be resolved.
This can be an exceptionally difficult time for the employee and others who may have been involved in any investigation. We would recommend that the employer should do as much as possible to ensure that the workplace does not become a hostile or unhealthy environment on the employee's return.