Top Tips for Dealing with the Suspension of an Employee for Alleged Misconduct
Updated: 15 November 2018
For any dismissal to be fair it is essential that a thorough investigation has taken place to determine whether disciplinary action is necessary. In some cases it may be appropriate to suspend an employee from work whilst the investigation is taking place. When suspension is used it should always be a precautionary measure to protect both the individual and the company, the circumstances of the case must justify it and that it must by necessary to ensure a fair investigation.
It is important to advise the employee that suspension does not constitute disciplinary action and does not itself imply any presumption of guilt on the part of the employee.
Suspension is part of the investigation process and the employee should receive normal pay whilst they are suspended from work.
A recent court appeal has shown that it can be dangerous to be hasty in suspending someone from work without preliminary investigations. The court decided that the employer was in breach of contract, duty of trust and confidence, even though the employee received full pay. There is a stigma attached to being suspended and some preliminary investigations, even very brief, should have been undertaken, particularly where third parties make allegations about the employee’s conduct. Suspension without pay would certainly be construed as breach of contract. Suspension even with pay should be for as short a period of time as possible. It is still a serious step to take and should not be used for minor situations.
The ACAS Code of Practice on Discipline and Grievance
The ACAS Code of Practice on Disciplinary and Grievance Procedures provides practical guidance on dealing with disciplinary and grievance issues in the workplace. It has statutory force, and an employment tribunal considering a relevant case will take into account whether or not the employer has complied with its provisions. The tribunal can adjust any compensation awarded by up to 25% for an unreasonable failure to comply with the code.
Where suspension is considered necessary the ACAS Code of Practice states that an employer should:
- pay the suspended employee during the period of suspension;
- keep the suspension as brief as possible;
- keep the suspension under review; and
- make clear that the suspension is not disciplinary action in itself.
Grounds for Suspension
The non-statutory guidance that accompanies the ACAS Code of Practice states that suspension may be necessary in the following circumstances:
- Where relationships have broken down;
- In cases where serious misconduct has been alleged, and which, if proven, would result in summary dismissal, for example where the employee is suspected of theft or fraud;
- Where there are grounds to believe that the employee might deliberately cause damage to company property, for instance to the company’s computer network, if they remained in the workplace;
- Where there is a clear concern that the employee or others may be placed at risk by the employee remaining in the work place;
- Where the employee’s continued presence at work might prejudice the investigation in some way, for example where there is a risk that he or she might intimidate witnesses or interfere with evidence;
- Where the employee has maliciously damaged the property of the company, colleagues or a third party such as a supplier or customer;
- Where the employee has acted in a violent manner or has threatened violence;
- Where the employee has been accused of serious bullying or harassment;
- Where the matter under review is of a highly sensitive nature; or
- Where the employee is being charged with a serious criminal offence.
In cases of personal harassment or bullying, it will be the alleged harasser who is suspended or temporarily redeployed to a different work location or asked to work from home; where such actions are considered necessary.
In Crawford v Suffolk Mental Health Partnership NHS Trust (2012) 2 nurses were accused of tying a patient to a chair with a sheet.
Elias LJ, the Court of Appeal judge giving the decision, took the unusual step of adding some additional thoughts on the suspension of employees suspected of wrongdoing. Elias LJ stressed that, although he was not referring to the employer’s actions in this case, suspension should not be a “knee-jerk reaction”. It appeared to him to be the “almost automatic response” of many employers to allegations of this kind to suspend the employee concerned immediately, irrespective of the likelihood of the complaint being upheld. Elias LJ said that he appreciated that suspension is often said to be in the employee’s best interests, but he noted that a suspended employee can frequently feel belittled and demoralised by the total exclusion from work. He said that, even if the employee is subsequently cleared of the charges, suspicions are likely to linger, not least because a suspension can appear to add credence to them.
Alternatives to Suspension
When considering whether the circumstances of a potential disciplinary situation are serious enough to warrant a consideration of suspension there are some alternatives which should be considered:-
- Can an individual remain on current duties with either additional supervision or some restriction on type of area of work (subject to operational requirements)?
- Can the individual be employed on alternative duties and will this remove any opportunity to re-offend.
- If the individual is allowed to remain on duty in either their own position or on alternative duties will their presence cause offence to members of the public or colleagues or harm the company’s reputation. If so can this be managed?
- Would investigations be hindered if the individual remained at work?
The Terms of Suspension
When suspension is deemed necessary, the manager leading the investigation should meet with the employee to discuss the terms of the suspension and why it is considered necessary. This should be followed up in writing to the employee. It will be necessary for the Investigator to explain:
- Why the employee is being suspended;
- When the suspension will start;
- How long the suspension is likely to last;
- That the suspension is on full pay and benefits;
- That the suspension is not a penalty or tantamount to disciplinary action;
- That the suspension does not mean that the employee has been judged guilty of any offence, or that the outcome of the investigation has already been determined;
- That the employee will have a full opportunity to put across their version of events, explain their conduct, or answer any allegations; and
- That their line manager will keep the employee updated as to the progress of the investigation and will stay in touch.
It might be necessary to remove items such as the employee’s access pass, computer password and company laptop and mobile phone, if the Investigator considers that it could undermine the investigation if the employee retained these items.
The Length of Suspension
In line with the “ACAS code of practice on disciplinary and grievance procedures”, the period of suspension should be kept as brief as possible, and its continuance kept under review. Where possible, the employee should be told how long the suspension is expected to last, and kept up to date with the progress of the investigation, including the reasons for any delays and what steps are been taken to ensure that it is completed as soon as possible. The suspension should be lifted immediately if the circumstances of the case no longer justify it.
- Suspension should not be imposed as a knee-jerk reaction to allegations. Always question whether the alleged misconduct or behaviour really warrants a period of suspension.
- Suspension may also be invoked where there is a potential risk to the business or where there is a risk of the employee interfering in any potential investigation.
- The actual decision to suspend should be taken directly after the Fact Finding stage and prior to the start of the formal Investigation (see my How To Investigate a Potential Disciplinary Matter).
- The decision to suspend should be communicated in a 121 meeting with the Fact Finding or Investigating Manager and followed up in writing.
- Suspension is a neutral act and does not imply guilt. Suspension should be without prejudice and on full pay. If pay is withheld then this could imply that a decision regarding any allegation has already been reached.
- The period of suspension should be kept under review to ensure that it does not become unnecessarily protracted.
- Make clear that the suspension is neither a disciplinary sanction nor an assumption of guilt.
Confirming the Period of Suspension
My Suspension Letter is designed to be used to suspend an employee where there have been allegations of misconduct against the employee, which require an investigation. The letter explains that suspension is a precautionary measure to allow an investigation to take place and clarifies that suspension is not a presumption of guilt or disciplinary action. Pay and benefits should remain unaltered. The letter details what the employee should and should not do during the suspension period. An unjustified suspension period may amount to a breach of the implied term of trust and confidence which could lead to the employee’s resignation and a claim of constructive unfair dismissal.
To download the Confirmation of Suspension Letter complete your details below and an email containing the document will find it’s way to your inbox: