An employer's guide to suspending employees - Guides - Gateley
Guide

An employer's guide to suspending employees

Gateley Legal

Suspending an employee is sometimes a necessary step in the workplace (for example, in a misconduct investigation). It is a serious step in its own right, however, and used without prior thought it can have serious consequences.

This guide explores when and how suspension should be implemented in a disciplinary context (or analogous situation). It doesn’t expressly cover medical suspensions, however, a link comparing the two types of suspension is provided in further resources at the end.

When is suspension appropriate?

Suspension can be used in a variety of serious situations involving employees. It may be appropriate where there has been a fundamental breakdown in the relationship with the employee, where there is a risk to property or where there is an overriding duty of care to other parties (e.g, patients in a medical context).

The most common scenario in which suspension is considered, however, is where an employee is under investigation for serious misconduct. In that context, an employer may decide:

  • that there is a potential threat to their organisation or business;
  • that there may be a potential threat to other employees; or
  • that it is not possible to properly investigate the allegation if an employee remains at work (for example because the employee may destroy evidence or attempt to influence witnesses).

Before suspending, it is vital that an employer carefully analyses the basis for their decision and considers the alternatives. This is because suspension is not (in the language of the courts) a "neutral act”. Suspension can have serious implications for an employment relationship. A suspension without justification it can give rise to claims by the suspended employee.

Might an unjustified suspension breach “Mutual Trust and Confidence”?

A duty of “mutual trust and confidence” is implied into employment relationships. Employer's should consider the impact on it first, before suspending. In particular, employer's should:

  • avoid suspension as a ‘knee-jerk’ reaction, and consider the reasons why it is considered necessary;
  • consider whether the suspension could be avoided/whether there are any alternatives;
  • be able to show they have considered the impact on the employee in question;
  • consider whether they have sufficient outline evidence to support any decision to suspend and potential charge of misconduct (where relevant);
  • where possible, obtain a response (at least in briefly) from the employee about the allegations before making the decision to suspend;
  • think carefully about how the decision to suspend is communicated to the employee;
  • consider carefully what colleagues, clients and other external third parties are told about an employee’s suspension and the investigation behind it (so as not to prejudice their position or the fairness of a subsequent hearing).

If the Employer decides to proceed, there are certain principles that the employer should stick to:

  1. suspension should be kept under regular review;
  2. it should be kept as short as possible;
  3. the employee should, as a minimum, be kept updated as to the position and reasons for suspension, where it is continued;
  4. the employer should consider the impact of loss of earnings over time (for example, in the case of shift work).

Examples

The following examples illustrate the type of consequences that can result where employer's fall short of their obligations to suspended employees:

  • Gogay v Hertfordshire County Council [2000] IRLR 703: the Court of Appeal awarded significant damages for a psychiatric illness suffered by a care worker in a children's home. The care worker was suspended following allegations of sexual abuse without sufficient outline evidence justifying suspension;
  • Camden and Islington Mental Health and Social Care Trust v Atkinson UKEAT/0058/07 an employee won her claim for constructive unfair dismissal because her employer had failed to review her period of suspension and lift the suspension at the appropriate time;
  • Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402, on the facts, the Court of Appeal held that an NHS Trust had been wrong to suspend two long-standing employees with no previous disciplinary record pending its investigation into allegations that they had tied a patient with dementia to a chair;
  • Agoreyo v Lambeth LBC [2017] EWHC 2019 (QB), the High Court held that Lambeth had breached its duty of trust and confidence to an employee, by failing to consider whether there were any alternatives to suspension and failing to obtain a response from the employee about the allegations before making the decision to suspend.

Alternatives to suspension 

Where the circumstances don’t justify formal suspension, the employer might choose instead to impose certain restrictions (implemented sensitively) to ensure an investigation can be conducted without interference. For example, if allegations against an individual do not justify outright suspension, but some concerns exist about confidentiality, the solution may lie in I.T. security and the appointment of an independent investigating manager.

Alternatively, even where matters appear serious enough to remove the employee from their work environment, it may be possible (under the terms of their contract and/or with consent) to redeploy them to another area of the business whilst an investigation is being carried out.

What about a situation where the employer doesn’t have the express right to suspend? 

Normally the employer will be suspending under the terms of an express right to do so (contained in the contract of employment, or set out in its disciplinary policies). If they don’t have such a right, however, the position can be more complicated.

Employer's should consider whether the nature of the employee’s work gives rise to an implied obligation to offer the employee work. Problems can arise, in particular, where the employee: 

  • Is otherwise deprived of the opportunity of earning remuneration such as shift premium or commission; or
  • Needs to maintain a public profile as part of their job;
  • Needs to exercise their professional skills frequently and needs to work for that purpose. 

In these type of situations, care should be exercised (and legal advice taken) based on the individual circumstances and role.

Might suspending be discriminatory? 

Employer's should ensure they operate their suspension policies consistently. This may be important if two or more employees are involved in an incident of misconduct and they are treated differently without good reason or treated differently because of a protected characteristic. For example, if two employees of different races are involved in an incident and one is suspended but the other is not, this might to amount to outline evidence of direct race discrimination.

What is the correct procedure for suspending? 

As soon as an employee is placed on suspension, they need to be informed of the decision in writing. A suspension letter should be given to the employee, or sent to their residential address straight away, setting out: 

  • That the employee is suspended and set out how long it is anticipated the employee will be suspended for (and when that period of suspension will be reviewed); 
  • Explaining the employee’s rights and obligations during the period of suspension under their contract of employment;
  • Stating that the employment contract continues but outlining any obligation  on the employee not to report to work and not to contact colleagues or clients, as appropriate; 
  • Notifying the employee of a point of contact (such as a Human Resources manager) during their period of suspension. 

Employer's should ensure that the period of suspension is as short as possible and the suspension decision should be kept under regular review. 

Suspension is a means of carrying out an investigation unhindered as quickly as possible and it is important that employer's do not impose it as a form of punishment. Where the matter concerns criminal allegations, employer's should seek legal advice on the impact of a police investigation (to avoid keeping employees on suspended full pay for months or years pending a court hearing). 

What are the employee’s pay entitlements during suspension? 

Employer's should normally continue to pay their employees and provide them with their standard benefits during the suspension period. 

Where an employer who is suspended falls sick, an employer may wish to review the amount of pay the employee is receiving. Exceptionally, it may be possible to revoke suspension on full pay and apply the (potentially lower) rate of sick pay then in force. Before doing this, however, an employer will want to look carefully at their policies and procedures (and rates of sick pay). 

Suspensions Checklist: 

Prior to suspension 

  • What is the justification for the suspension (eg. is there alleged gross misconduct)?
  • In misconduct cases, is there outline evidence to justify suspension?
  • Have alternative courses of action been considered?
  • Is there a ‘right to suspend’ in the employees employment contract? 
  • Has the employee had previous disciplinary action taken against them (from which a pattern of behaviour might be relevant)?
  • Has a response (at least in outline) from the employee been obtained about the allegations? 

Following the decision to suspend the employee

  • Has the employee been notified as soon as possible?
  • Has a suspension letter been sent to the employee?
  • How often will you make contact with the suspended employee/renew the suspension?
  • What have colleagues, clients and third parties been told about the suspension? Avoid conveying an assumption of guilt that may prejudice the fairness of a subsequent hearing.
  • Has the suspension policy operated consistently? Are there any other employees involved in incident that have not been suspended? If so, consider why they have not been suspended. 
  • Has the period of suspension been regularly reviewed and (if relevant) lifted at the appropriate time? 

What are the risks following suspension of an employee?

If a suspension is handled badly, an employee may be able to resign from employment and claim constructive unfair and wrongful dismissal by virtue of the employer's conduct. The employee would then need to establish:

  1. a repudiatory breach of contract on the part of the employer of an express or implied term (for example the term of ‘mutual trust and confidence’); and
  2. an election by the employee, for that reason, to accept the breach and treat the contract as at an end.

There is also a risk an employee may bring a discrimination claim if the suspension policy is applied inconsistently. 

Conclusion and Further Resources

Employer's should not suspend an employee as a “knee-jerk”, automatic reaction to employee misconduct. Alternatives to suspension should be considered at the outset. Prior to suspending, the employer must be satisfied that it has reasonable grounds for the suspension and that they have the right to suspend the employee. 

If the employer decides to suspend an employee, notification requirements and payment obligations must be complied with. Particular care should also be taken to ensure that the suspension policy is applied consistently. 
 

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