When can an employer suspend an employee?

ACAS has published guidance for employers on when to consider suspension of an employee. It notes that an employer should only usually consider suspension from work if there is a serious allegation of misconduct; medical grounds to suspend; or a workplace risk to an employee who is a new or expectant mother.

Importantly, the guidance reminds employers that suspension “should never be an automatic approach for an employer when dealing with a potential disciplinary matter”, as an employee will often be able to continue carrying out their normal role while the matter is investigated.

The guidance recommends that suspension as part of a disciplinary procedure should 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
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.

It also recommends that an employer should consider whether there are alternatives to a suspension as part of a disciplinary procedure, which could include the employee temporarily

being moved to a different area of the workplace or working from home
changing their working hours
working under supervision
being transferred to a different role (but with a similar status and the same terms and conditions as their normal role).

Employers are reminded that suspension as part of a disciplinary procedure should be on full pay, unless there is a contractual right to suspend without pay. Even if there is such a right (which is rare in our experience), the guidance warns employers that unpaid suspension is likely to be viewed as a punishment that could lead to an accusation that the disciplinary procedure was not fair.

Any suspension should be brief and regularly reviewed. The employee will usually still be expected to be contactable during normal working hours and available to attend meetings and/or interviews that are necessary during the investigation. Employers should maintain regular contact with the employee and keep them updated about their suspension, the ongoing reasons for it, and how much longer it is likely to last.

Comment

The guidance is not binding on employers but provides some useful clarity. We have previously reported on case law which reminds employers that suspension of an employee prior to or during the course of a disciplinary procedure should be considered carefully in light of all the circumstances and should not be a “knee-jerk” reaction. Employers should consider why the suspension is necessary and whether there may be an alternative. This can sometimes be forgotten in the heat of the disciplinary process, but a mistake can lead to an allegation that there has been a breach of the implied term of trust and confidence.

11 July 2018

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