Getting suspension right

I have been contacted by a large number of people recently who have been suspended from work in rather unusual circumstances or where suspension is clearly not justified, and therefore I thought it may be useful to remind employers of some key points to remember when suspending an employee.

Can I suspend an employee?

It is generally permitted for you to suspend an employee from work with pay for a short period of time whilst you investigate an allegation of misconduct or some other disciplinary issue.

I recommend that you include a clause in your employment contracts enabling you to suspend an employee on full pay to ensure that they cannot argue that they have the implied right to work.

However, there are some restrictions on when and how you can suspend and what you should do whilst an employee is suspended. You can read the full key points to note here

1.You should only suspend an employee if it is appropriate to do so in the circumstances

This means that you must have sufficient grounds to justify suspending the employee. There must be an allegation of serious misconduct, or a risk to the business or a risk to the integrity of the investigation if the employee remains at work. For example, there is an allegation that an employee has bullied a colleague and you are concerned that employees may feel intimidated if the employee is present when they are being asked questions about the allegations.

On the other hand, if the allegation is that the employee failed to follow an internal procedure this would not justify suspension and it could be a breach of contract to suspend the employee.

If you are unsure if suspension is a fair and reasonable option, then it is recommended that you seek advice about the specific circumstances before deciding to suspend.

2. You should pay employees during suspension

Unless it states differently in their employment contract employees are entitled to be paid during a period of suspension.

If an employee is paid by a combination of salary and commission the position regarding pay on suspension will be different and an employee may be able to argue that it is unlawful to suspend them on basic pay, and that they should receive a payment equivalent to what they would have earned had they not been suspended.

All employment rights remain whilst an employee is suspended, for example they will continue to accrue holiday.

3. Suspension should not be used as a punishment

Unless the employment contract states that an employee can be suspended as a sanction for misconduct, it should not be used as a form of punishment for disciplinary issues.

4. Suspension should be for a limited period & should be reviewed regularly

It is not fair or reasonable to keep an employee suspended from work for an indefinite period of time. Suspension should be for as little time as possible, and you should not delay in investigating the allegations that led to the suspension in the first place.

Whilst an employee is suspended you should regularly review the decision to suspend and I recommend that the person who is in charge of running the process, either the manager or HR manager, should diarise a review at least every fortnight. Best practice is to contact the employee, in writing, and inform them that their suspension has been reviewed, the reason for their continued suspension and likely timescale for conclusion of the investigation or return to work.

5. You do not have to suspend an employee in order to justify their dismissal

Contrary to popular belief just because you have decided not to suspend an employee it will not mean that a decision to terminate their employment will be unfair or a disproportionate sanction.

I have heard it argued by some employee representatives that the decision to dismiss an employee for a conduct issue would be unfair if the employee was not suspended when the allegation was raised. This is not correct and in fact if you make a decision to suspend someone at the outset, because you believe it will lead to dismissal, you could be pre-judging the outcome of the disciplinary process.

Suspension should only be used where it can be justified for business reasons not just when the person making the decision to suspend thinks that the employee is guilty of the conduct or behaviour alleged.

Action to take to make your life easier:

1. Ensure that there is a clause in employee contracts regarding suspension whilst investigations are undertaken or disciplinary procedures are underway;
2. Check to ensure that suspension and procedures regarding suspension are included in your disciplinary policy;
3. Review employee suspensions in writing at least every fortnight. For good employee relations I recommend at least every week;
4. Seek advice before suspending an employee if you are unsure about the justification for suspension.

Alison@realemploymentlawadvice.co.uk or 023 8098 2006 or 01983 897003.

 Don’t forget getting advice from a Solicitor does not have to be complicated or costly!