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We answer some frequently asked questions about how to suspend an employee and what disciplinary process to follow.
I need to start a disciplinary process so how should I suspend the employee?
The first question is not how to do it, but whether it is, in fact, necessary. Most disciplinary procedures will not require suspension. ACAS guidance states that suspension should never be an automatic approach for an employer when dealing with a potential disciplinary matter.
Knee-jerk suspensions should be avoided and you should ensure you can demonstrate that you applied your mind to the issue of suspension and had reasonable and proper cause for deciding to suspend in the circumstances (and that these reasons stand up to scrutiny).
Suspension can amount to a breach of the implied term of trust and confidence where there is not reasonable and proper causeto suspend. That question of whether or not there is reasonable and proper cause to suspend is highly fact-specific.
How will I know if it is necessary or not?
Suspension should usually only be considered if there is a 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.
An employer considering suspending an employee should think carefully and consider all other options.
What other options might there be?
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.
Two of my employees have had a fight, can I suspend one and not the other?
You should seek to ensure that you operate your suspension policy consistently. This is particularly the case where, for example, two employees are involved in an incident of misconduct and one is suspended and the other is not, without good reason for the difference in treatment. This might be a breach of trust and confidence. Moreover, if the individual who is suspended has a protected characteristic that the other one does not, or has previously performed a “protected act”, this might amount to a prima facie case of discrimination or victimisation.
What is the correct process for suspending?
An employee should be informed of the fact that they have been suspended as soon as possible. Any conversation to this effect should be followed up in writing promptly. The letter should, among other things:
- Make it clear that the employee is suspended and what the reason for the suspension is. Set out how long it is anticipated the employee will be suspended for.
- Point out that the purpose of the suspension is to investigate and is not an assumption of guilt.
- Explain the employee's rights and obligations during the period of suspension.
- State that the employment contract continues but that the employee is not to report to work and must not contact colleagues, clients, customers or suppliers.
- Notify the employee of a point of contact, such as an HR manager, during their period of suspension.
Suspension should not be seen as a form of punishment for the employee; instead it should be regarded as a means of carrying out an investigation as quickly and effectively as possible.
Inevitably, however, an employee will often view suspension as a punishment and, unless handled sensitively, suspension may lead an employee to conclude that the outcome of any disciplinary hearing has already been determined. Consequently, the way in which you communicate the suspension, along with the related paper trail you keep, will be important.
How long can I keep the employee suspended for?
There is no time limit as such but any period of suspension should be as short as possible.
The decision to suspend should be kept under review.
An employee should be kept regularly updated about their suspension, the ongoing reasons for it, and how much longer it is likely to last. 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.
What should I pay the employee during suspension?
Unless there is a clear contractual right to do so, you will not be entitled to suspend without pay. Consequently, while an employee is suspended, they should continue to receive their normal pay and benefits.
An employer should seek legal advice if they are considering suspension without pay. Unpaid suspension is more likely to be viewed as a punishment and could lead to accusations that the disciplinary procedure was not fair.
We suspended an employee pending a disciplinary investigation but there is no case to answer. She has complained that the suspension was not handled fairly, what do we do now?
Once a suspension comes to an end, the employee should be allowed to return to work immediately.
An employee may sometimes feel aggrieved about the suspension and/or worried about returning to work. Therefore, an employer should arrange a return-to-work meeting on the employee's first day back, or as early as possible. It can provide an opportunity to discuss and seek to resolve any concerns informally.
If the matter cannot be resolved informally, an employee should be directed towards the organisation’s grievance procedure to make a formal complaint.
