Mark Fellows Partner
+44 (0)1727 738976
17th January 2020 | Mark Fellows | Employment Law, Employer
Partner Mark Fellows, Head of the Sherrards Employment department explores when you should consider to suspend an employee.
Whilst suspension is a precautionary measure, it is important to note that the question over whether to suspend in the first place is still a vital question to be asked before any steps are taken.
This has been highlighted by a recent tribunal matter where a school had suspended one of its teachers in order to investigate allegations that she had used unreasonable force against two of her pupils. Whilst some may think that the severity of these allegations would warrant the suspension of the teacher, the High Court held that it had not been necessary for the school to suspend the teacher and that they could have considered alternative measures. However, on appeal, the Court of Appeal confirmed that the school had had reasonable and proper cause to suspend the teacher.
Suspension is most commonly used for employee allegations involving gross misconduct. The suspension of an employee can therefore be a useful tool, providing an employer with invaluable breathing space to properly investigate an incident in the workplace.
If used inappropriately however, suspension can result in an employer being faced with a constructive dismissal claim from an aggrieved employee. It can damage employee relations or be seen as casting a shadow over an employee’s competence or character. Accordingly, it should be used with care.
ACAS provides the following guidance in relation to suspending an employee: https://archive.acas.org.uk/suspension
When can you suspend?
The above case confirmed that the appropriate test for an employer is not whether it is “necessary” to suspend an employee but whether an employer has “reasonable and proper cause” to suspend an employee. Requiring suspension to be “necessary” was deemed to be too high a bar and so this case has confirmed the threshold for suspension.
This means that an employer may legitimately be able to suspend an employee who is suspected of stealing. In these circumstances, the employer’s “reasonable and proper cause” may be to ensure that the employee in question is unable to carry out any further misconduct.
An employer may also be able to justify suspension on the basis that there is a risk of the employee interfering with investigations, tampering with evidence or attempting to influence witnesses.
Tips for suspending an employee
If you think the suspension of one of your employees is required, you can mitigate the risk of a constructive dismissal claim by:
You should also set clear boundaries and expectations for a suspended employee. For instance, you should make it clear that whilst on suspension they remain an employee of the company, bound by the terms and conditions of their employment and should remain contactable during working hours (apart from during periods of pre-arranged annual leave).
You should also make it clear that they are required to co-operate in your investigations and to attend investigation and/or disciplinary meetings. Depending on the allegations made, you may also wish to make it clear that they should not contact any of their colleagues and/or attend the workplace whilst your investigations are ongoing.
In order to avoid any doubt, we would recommend that a letter is sent to the employee in order to confirm the terms of their suspension.
Problems can arise for an employer if:
In summary, where the question of whether to suspend arises at the outset of an internal procedure, it is worth remembering that this decision will be material to the fairness of the entire process and that it is important to be able to show reasonable and proper cause in order to suspend an employee.
To find out more, please contact Mark Fellows.