State of suspense: when can you suspend an employee and how should you do it?

When faced with serious allegations against an employee, employers' instinctive reaction is often to want to suspend the employee until a disciplinary process has concluded. 

4/2/2019 12:00:00 AM

But although suspension is a useful tool, it needs to be handled carefully to avoid creating legal and practical headaches.

What to do first?

First, it's important to check that the employment contract gives you the right to suspend the employee at all. If you don't have an express clause to that effect, the employee may well be able to argue that a suspension is a breach of their employment contract entitling them to resign and claim constructive unfair dismissal.

It's also necessary to check whether the employment contract or the disciplinary policy limits the circumstances in which suspension can be used or the length of the suspension. For example, the contract may say that suspension can only be used in order to investigate allegations pending a disciplinary hearing. This may pose problems if the reason for the proposed suspension is slightly different, e.g. another employee has lodged a grievance making serious allegations (e.g. sexual harassment) and the business wants to suspend the alleged harasser until the grievance is concluded. Suspension should usually be on full pay unless the employment contract specifies otherwise (which is rare – and even if it does, suspension without pay should usually be imposed only after a disciplinary hearing).

Make sure to consider the full process of suspension

A central issue is establishing what the rationale is for suspending the employee. A recent Court of Appeal case considered whether suspension could be a breach of the implied term of mutual trust and confidence. The good news for employers is that if there is "reasonable and proper cause" to suspend the employee, this is unlikely, but suspension should not be a matter of routine where allegations are made, nor should it be a "knee jerk" reaction. Whether there is reasonable and proper cause to suspend will depend on the factual circumstances, including whether the allegation is credible, its seriousness, the risk to the employer and any third parties and whether the employee is likely to interfere in any investigation.

The employer should confirm the decision to suspend the employee in writing, with clear instructions about what the employee can and can't do while suspended and an indication of the timescale. The letter should make it clear that the suspension isn't a disciplinary sanction in itself. Suspension should generally be kept as short as possible and reviewed regularly if the investigation is delayed. It's also wise to keep the employee updated as to the progress of the investigation, rather than leaving them hanging.

Suspension can be an essential tool for employers dealing with serious allegations against an employee – and if used judiciously and implemented fairly, is unlikely to give rise to legal claims.

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