To Suspend or not Suspend: That is the Question
ACAS has recently released their own guidance on suspending an employee from work. This follows the decision in the case of Agoreyo v London Borough of Lambeth which acted as a reminder to employers and advisers about the risks of suspending employees as a knee-jerk reaction to potential misconduct.
The ACAS guidance does consider suspension as part of the disciplinary procedure but goes on to cover suspension on medical grounds and also suspension due to a risk to a new or expectant mother.
Focusing on suspension as part of the disciplinary procedure (which is usually on full pay), ACAS rightly explains suspension should not be an automatic approach for an employer when dealing with a potential disciplinary matter.
An employee will usually be able to continue doing their normal role while the matter is investigated.
When suspension is likely
Suspension is usually only considered when there is serious allegation of misconduct and:
- Working relationships have severely broken down
- The employee could tamper with evidence, influence witnesses and/or sway the investigation into the allegation
- There is a risk to other employees, property or customers
- The employee is the subject of criminal proceedings which may affect whether they can do their job.
They then go on to consider alternatives to a suspension as part of a disciplinary procedure.
Even where there are reasons to consider suspension, ACAS suggests that in most situations a temporary adjustment to the employee's working arrangements can remove the need to suspend.
For example, if tensions between two employees are high then a temporary transfer to a different team can stop them having to work together while an investigation is carried out.
Alternatives to suspension
Alternatives to suspension could include the employee temporarily:
- being moved to a different area of the workplace
- working from home
- changing their working hours
- being placed on restricted duties
- working under supervision
- being transferred to a different role within the organisation (the role should be of a similar status to their normal role, and with the same terms and conditions of employment).
Only if all other options are not practical, may suspension become necessary.
What employers should consider before suspension
Suspending an employee is a serious action by the employer and the employer should also consider the following:
There should be no assumption of guilt associated with a suspension and suspension must not be used as a disciplinary sanction. However, a suspension can still have a damaging effect on the employee and their reputation (this was particularly relevant in the Agoreyo case).
If a suspension is therefore necessary, the suspension and the reason for it should be kept confidential, where possible. If it is necessary to explain the employee's absence, an employer should discuss with the employee how they would like it to be explained to colleagues and/or customers.
- Is it really necessary to escort an employee from the workplace? Again, think of the impact on their reputation and/or their dignity.
- Is it really necessary to remove the employee's workplace pass and/or IT access? This may be appropriate if there is a concern about them interfering with evidence/systems whilst they are suspended and especially if the allegations in question relate misconduct in relation to IT systems.
- If, after considering all the options, it is felt necessary to suspend the employee (and there should be an investigation meeting with the employee to initially discuss the allegations and/or concerns before suspending them – if felt necessary and appropriate), they should be provided with/sent a suspension letter. The suspension letter should include:
- the reasons for the suspension and how long it is expected to last
- their rights and obligations during the suspension. For example, that they should be contactable during normal working hours
- a point of contact (such as a manager or HR) and their contact details for the employee during their suspension
- that the purpose of suspension is to investigate and is not an assumption of guilt.
Pay during suspension
As mentioned earlier, employees who are suspended due to a serious allegation of misconduct must receive their full pay unless:
- they are not willing or are able to attend work (for example because they are ill – in which case they would receive their sick pay instead)
- there is a clear contractual right for an employer to suspend without pay or benefits (this is rare as a suspension without pay is more likely to be viewed as a punishment and could lead to accusations that the disciplinary procedure was not fair).
Length of suspension
A period of suspension should be kept as brief as possible and regularly reviewed to ensure it is still necessary. For particularly complex cases, where detailed investigation is necessary or where the police are involved and have asked the employer not to take any disciplinary action until they have carried out their investigation, the suspension may last for some considerable time.
A suspended employee will usually still be expected to be contactable during normal working hours and available to attend any meetings and/or interviews that are necessary concerning the investigation.
If the employee wants to go on holiday during their suspension, they must still make a request to take annual leave in the normal way and they should also make the employer aware if they fall ill as a suspension on pay would usually then be put on hold and the employee treated as being absent due to illness until they are deemed fit to return to work at which point the suspension could recommence.
An employee should be kept regularly updated about their suspension, the ongoing reasons for it, and how much longer it is likely to last.
Regular contact should be maintained between the employee and their manager and/or point of contact during the suspension. It is important that the employee is supported during this time and is able to contact someone at the workplace to discuss any concerns they may have.
Once a suspension comes to an end, the employee should return to work immediately.
Given the serious nature of a suspension, an employee may sometimes feel aggrieved about the suspension and/or worried about returning to work. An employer should arrange a return-to-work meeting on the employee's first day back, or as early as possible. Such a meeting can provide an opportunity to discuss and resolve any concerns the employee may have.
The meeting could be arranged away from the workplace or somewhere at work in private.
What does this mean for my business?
It is clear that employers must consider all options before suspending an employee on pay and seek advice where available.
To ensure you follow best practice (and, if applicable, do not compromise your insurance), contact the Alcumus HR Consultancy team on 01484 439 920. Our team of consultants can provide you with the professional advice you need for managing your employees.
Written by Anil Champaneri, Senior HR Consultant