October 2018 - How to suspend an employee

ACAS has recently updated its guidance on suspending employees. The key points are set out below and fuller guidance can be read on the ACAS website. Suspension should only be used in exceptional circumstances, so if you are considering suspending an employee do call ITC to discuss it first.

What is Suspension? Suspension is where an employee continues to be employed but does not have to attend work or, in some cases, do any work.
When should you suspend an employee?
The main reason for suspension is where there are serious allegations of misconduct and -
• Working relationships have severely broken down.
• The employee could tamper with evidence, influence witnesses and/or sway investigation into the allegations.
• There is a risk to other employees, to property or to customers.
• The employee is the subject of criminal proceedings that may affect whether they can do their job.

Suspension may also occasionally be necessary on medical grounds or where the workplace is risky for a new or expectant mother.

Before considering suspension for any reason, consider whether temporary adjustments to the employee's working arrangements could be a viable alternative, e.g: a temporary transfer to a different team or office or working from home whilst investigation is carried out.

What suspension is not Suspension should not be used as a disciplinary sanction, there should be no assumption of guilt associated with a suspension.
Before deciding to suspend
• Check that there is a contractual right to suspend.
• Check if the employee’s earnings are dependent on being at work, for example if they are paid per item they make suspension may be a breach of their right to work.
• Be sure there has been 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 even resign and claim constructive dismissal.

If you do decide to suspend
Remember that suspension can have a damaging effect on the employee and their reputation so always consider carefully whether suspension is appropriate and document your reasoning. A suspension and the reason for it should be kept confidential, wherever possible. If it might be necessary to explain the employee's absence you should ask the employee how they would like it to be explained to colleagues and/or customers.
Where possible a meeting should be held with the employee to explain:
• That they are suspended from work with immediate effect until further notice.
• The reasons for their suspension and how long it is expected to last.
• 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;
• That they will still receive their pay and benefits.
• Any practical issues e.g: what colleagues will be told, how their work will be covered.
• Possible outcomes e.g: coming back to work and/or attending a disciplinary meeting.
• The meeting should be followed up with a letter setting out -
• The reasons for the suspension and how long it is expected to last
• The employee’s rights and obligations during the suspension. For example, that they should be contactable during normal working hours
• A point of contact for the period of suspension.
• That the purpose of suspension is to investigate and is not an assumption of guilt.

During a suspension
Review: 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.
Pay: Employees should receive full pay and benefits during a period of suspension unless -
• They are not willing or are unable to attend work if required.
• There is a clear contractual right for an employer to suspend without pay or benefits.
• They have unreasonably refused suitable alternative work.
• They have been suspended for more than 26 weeks.
Always seek advice if you are considering suspension without pay as unpaid suspension is more likely to be viewed as a punishment and could lead to accusations that the disciplinary procedure was not fair. If a suspended employee advises they are ill and would not be able to attend work if required, they should receive their usual sick pay. Like any other employee, if it lasts longer than 7 days a fit note must be provided.

How long should a suspension last?
A period of suspension should be kept as brief as possible and reviewed regularly to ensure it is still necessary.

Availability during a suspension
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.

Communication during a suspension
An employee should be kept regularly updated about their suspension and how much longer it is likely to last. It is important that the employee is supported during this time and knows who they can contact at the workplace to discuss any concerns they may have.
As part of a disciplinary procedure, an employee may be asked not to communicate with other staff while they are suspended. If, however, the employee wants a work colleague to accompany them at a disciplinary hearing and/or be a witness in their defence they should:
• Write to their employer and seek permission to contact the individual
• Explain why contact is necessary during their suspension
• Wait for confirmation from the employer that they may contact the individual.

Ending a suspension
Once a suspension comes to an end, the employee should return to work immediately. A return-to-work meeting should be arranged for the employee's first day back or as early as possible. It can provide an opportunity to discuss and resolve any concerns e.g: an employee may feel aggrieved about the suspension and/or worried about the return to work. This meeting should be away from the workplace or somewhere at work in private. An employee with concerns about how their suspension has been handled should be encouraged to try to resolve the matter informally first. If the matter cannot be resolved informally they should follow the organisation’s grievance procedure.