ACAS publishes new guidance on suspension

ACAS have published new guidance on staff suspension at work. The guidance aims to advise employers how to consider and handle staff suspensions at work, specifically during investigations.

The guidance considers a number of key issues including:

Deciding whether to suspend. The guidance states that employers should only consider suspension if they believe it is needed to protect the investigation, the business, other staff or the person under investigation. Employers should consider whether there are alternatives to suspension, including temporarily changing an employee’s shifts or moving them to a different office or site. An employee should only be suspended if the employer feels it is a reasonable way of dealing with the situation.
The process for suspending. The guidance reminds employers that they should explain the reason for the suspension to the employee and set out what the next steps will be. Suspension should be for as short a time as possible.
Supporting an employee’s mental health during suspension. The guidance suggests communicating clearly with the employee and keeping in touch throughout the process. It also recommends making clear that suspension does not mean that they have decided the employee has done something wrong. Employees should be told what support is available.
Pay and holiday during suspension. There is a reminder that employees should continue to be paid as usual during any suspension.

The ACAS Code of Practice on disciplinary and grievance procedures

It is also important for employers to be aware of the provisions set out in the ACAS Code. Any period of suspension should be as brief as possible. The decision to suspend should be kept under review and it should be made clear that suspension is not considered disciplinary action.

In the event of a claim of, for example unfair dismissal, employment tribunals must take the ACAS Code into account where relevant when considering whether an employer has acted reasonably or not. In certain types of claim, an employment tribunal awarding compensation has the power to increase that compensation by up to 25% where the employer has unreasonably failed to follow the ACAS Code.

Suspension as a ‘knee jerk’ reaction

The Court of Appeal has confirmed that suspension should not be a ‘knee jerk’ reaction to an allegation of misconduct. The employer should always consider whether it is reasonable to suspend and whether there are any alternatives to suspension.

Suspension during a disciplinary process can give rise to an allegation of a breach of the implied term of trust and confidence. This can lead to the risk of an employee resigning and alleging constructive dismissal. Cases will always be fact specific and depend on the circumstances. However, in the event of a claim, the Tribunal would consider whether there was a reasonable and proper cause for suspension.

Comment

In cases of an allegation of serious misconduct against an employee, employers should consider carefully whether it is reasonable in the circumstances to suspend the employee while they carry out an investigation and disciplinary hearing. There will be circumstances in which suspension is appropriate. However, suspension should not be an automatic decision. Employers should also ensure that any decisions to suspend are made consistently. Failure to do so could give rise to allegations of constructive dismissal or discrimination. Unless there is a clear contractual right to suspend without pay, an employee should continue to be paid in the normal way during any period of suspension.

Employers should also consider suspension very carefully where there is a criminal investigation and consider seeking legal advice before reaching a decision.

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15 September 2022

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