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... Read more

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:

  1. Making it clear that suspension is not disciplinary action in itself or intended to be a punishment;
  2. Reassuring the employee that suspension is not an indicator of guilt or that the outcome of any investigation is predetermined;
  3. Confirming that you will be conducting a full and proper investigation and setting a clear timeline for future communications;
  4. Notifying the employee of a point of contact (such as a member of HR) during their period of suspension; and
  5. Confirming that suspension is a temporary measure.

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.

Potential issues

Problems can arise for an employer if:

  1. The suspension is communicated to others in an improper way – employers should be careful how they explain the employee’s absence to others and ensure that they do not imply any wrongdoing or fault on behalf of the employee. Suspension is still viewed by some as carrying a negative stigma and so you may decide to explain an employee’s absence in an alternative way;
  2. Suspension is too high a sanction – an employer needs to consider whether the potential disciplinary matter is serious enough to warrant suspension in the first place. Minor misconduct will often not warrant suspension. On the other hand, it may actually damage an employer’s case if they do not suspend in a clearly very serious case;
  3. Suspension continues for too long – employers should try to complete their investigation as quickly as possible and should review suspension if and when new evidence comes to light. If, for example, you discover clear CCTV footage which refutes the allegations made, you may consider ending a period of suspension prematurely (whilst continuing with your investigations);
  4. Suspension is unpaid – employers should not suspend an employee without pay unless they have the express right to do so in the employee’s contract of employment. Even with the required provision, this is likely to be a high-risk strategy and in practice, there are limited circumstances where you would not pay a suspended employee.

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. 

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