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How to lawfully suspend an employee and avoid a "knee-jerk reaction"
When can an employer lawfully suspend an employee and what is the correct procedure to do so? We find that this is a really common stumbling block for employers. Indeed, new guidance on suspending employees has been produced by ACAS this summer, suggesting that some employers may be in need of clarity on their legal rights and obligations.
In this article, we set out on what grounds suspension can take place, how to suspend properly, and common hazards to look out for.
When can an employer lawfully suspend an employee?
Many employers make the mistake of thinking that suspension is justified whenever an employee appears to have committed an act of gross misconduct. This is incorrect. While it is true that you will usually need a serious allegation of misconduct to suspend, the suspension must also be justified on the basis that the employee’s continued presence at work poses a risk to either your:
- Business e.g. an employee is accused of secretly diverting the company’s work to his own business, and you reasonably suspect that he may continue, resulting in a loss of profit unless you suspend;
- Staff e.g. an employee is accused of physically threatening a colleague, and the colleague is scared to come back into the office; and/or
- Disciplinary investigation e.g. you are concerned that the employee may seek to destroy evidence of their own wrongdoing or will intimidate colleagues who are being interviewed as part of the disciplinary process.
As such, suspension is a protective measure only, and will not be appropriate, required or lawful in many disciplinary scenarios. This reflects the fact that suspension, while not a disciplinary sanction, carries a significant stigma and can be psychologically damaging to employees, even if they are subsequently cleared of any wrongdoing.
The case of Agoreyo v London Borough of Lambeth was a stark reminder to employers of the need to avoid using suspension as a routine response to allegations of misconduct i.e. a “knee jerk reaction”. In this case, a teacher was suspended for allegedly having used force on two pupils to get them to behave. However, the court ruled that the suspension was unlawful as the school had not properly considered whether suspension was appropriate and crucially had failed to ask the teacher for her version of events or consider whether alternatives to suspension were appropriate.
What is the correct procedure to suspend an employee?
After carefully considering whether suspension is appropriate (and documenting your reasoning for evidential purposes) a meeting should be held with the employee to explain:
- that they are suspended from work with immediate effect until further notice;
- what suspension means e.g. that they should not attend the workplace, do any work, contact customers or colleagues or log on to IT systems, without prior permission;
- the reasons for their suspension and how long it is expected to last;
- that the employee will still receive their pay and benefits;
- the practical issues, for example, what their team will be told, and how their work will be covered; and
- the possible outcomes after suspension which include coming back to work or being required to attend a disciplinary meeting.
After the meeting, these matters should be followed up in a letter detailing the same and emphasising that suspension is not a form of disciplinary sanction and that there is no implication at this stage that the employee is guilty of misconduct. The letter should also include a point of contact for the employee during their suspension and inform the employee to remain contactable during normal working hours and be available to attend any meetings relating to the investigation.
The suspension period should be kept under close review by the employer, and should continue for no longer than is necessary. Regular contact should be maintained with the employee during their suspension, informing them how long it is likely to last. Once the suspension period has ended, the employee should immediately return to work. If an employee has concerns about how their suspension was handled, it is good practice to have a meeting with the employee to discuss these issues, which may help head off a formal grievance.
Things to watch out for when considering whether to suspend an employee …
Employers should take great care when considering whether to suspend employees in the event of alleged misconduct. Among other things, remember to:
- check there is a contractual right to suspend i.e. check that this is either contained in the employee’s contract of employment or an a staff handbook or other internal policy (which has been brought to the employee’s attention). If there is no express power to suspend, then an employer would need to argue it has an implied right to do so, which is an extra hurdle for an employer to show they have acted properly.
- consider whether the employee’s earnings are dependent on being at work, for example if they are paid per item they make. If so, suspension may be a breach of their right to work. The same can be said if an individual needs to be at work to exercise their skill. The upshot of this is that suspension should be kept as short as possible and should not cause the employee any financial hardship.
- only suspend on the basis of a carefully reasoned decision making process. If an employer does not act reasonably in suspending an employee, the employee may allege that the implied duty of trust and confidence has been breached, and may bring a grievance, or worse, resign and claim constructive dismissal.
This article was written by Emily Kearsey and Judith Seifert. It is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.