Pay Online
Instant Conveyancing Quote
Wednesday, February 9, 2022
The What, Why, and How of Suspension Pending Investigation
Suspending an employee can often appear to be a dramatic move by an employer and those on the receiving end may feel they’re being judged as guilty until proven innocent. There are however good reasons to make such a decision but being aware of the steps permitted and risks associated with suspending an employee is essential in managing the process fairly and effectively.
In this article we share the formal Government guidance along with common-sense approaches to the management of this sensitive issue.
Dealing with difficult situations in the workplace can be stressful and disruptive. Having clearly laid out policies and procedures to cover eventualities, no matter how remote and unexpected they may seem is key. Planning for the positive but being prepared for the worst is the prudent approach especially when it comes to managing people. Unfortunately, the unexpected happens more often than you think!
If handled proactively and in circumstances not involving alleged criminal activity the matter can be tackled through a process of clear and constructive communication. That would be the primary “go to” option however if that is not possible or fails to move matters forward a suspension may well be your next best choice.
What – the Definition
Suspension is where an employee continues to be employed but does not have to attend or do any work. As the term suggests it is the temporary placement of the member of staff away from the work environment, typically home. During this period the employee retains all other rights including salary. Note: There are cases where additional factors will need to be considered such as a member of sales who needs to be mobile and earns commission as a % of their income. Dependent on the circumstances of the case the employer should decide on what would be reasonable during the suspension but not permit the member of staff to continue their duties.
Why – The Reasons to Suspend
You may wish to double check the wording of your staff handbook or contracts of employment to ensure that you retain the right to suspend. Setting out such steps within a formal and agreed document is a prudent step when considering any likely “pushback” from a disgruntled employee, threatening their own action in retaliation.
As the employer you should usually only consider suspension from work if there is:
- a serious allegation of misconduct
- medical grounds to suspend
- a workplace risk to an employee who is a new or expectant mother.
Suspension should not be used as a disciplinary sanction.
If an employee is suspended, it does not automatically implicate them and suggest they have done something wrong or that their employer assumes they have done something wrong.
How to Approach Suspension
Suspension should be your last resort and never an automatic approach for an employer when dealing with a potential disciplinary matter.
Most disciplinary matters you’ll deal with will not require suspension with employees able to continue doing their normal role while the matter is investigated.
Suspension should usually only be considered if there is a serious allegation of misconduct and:
- the working relationships have broken down
- there is a risk that the employee could interfere with the investigation access evidence, influence witnesses etc.
- you need to protect employees, property or customers
- the matter is the subject of criminal proceedings which may affect whether they can do their job.
Alternatives to Suspension
If you are considering a possible suspension of an employee, you should think carefully and consider all options.
Even where there are reasons to consider suspension, in most situations a temporary adjustment to the employee’s working arrangements can remove the need to suspend.
For example, if tensions between two employees are high then a temporary transfer to a different team can stop them having to work together while an investigation is carried out.
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.
There should be no assumption of guilt associated with a suspension and the act must not be used as a disciplinary sanction. However, a suspension can still have a damaging effect on the employee and their reputation.
Therefore, if necessary, the suspension and the reason for it should be kept confidential, where possible. If it is necessary to explain the employee’s absence, an employer should discuss with the employee how they would like it to be explained to colleagues and/or customers.
Other considerations could include whether it is necessary to:
- escort the employee from the workplace
- remove the employee’s workplace pass and/or IT access
- ask the employee to not contact other employees during the investigation.
The Process
If suspension is necessary, the employee needs to be notified as soon as possible and provided with a written confirmation that includes:
- The justification for the suspension and its likely duration
- Include clarification of their rights and what they can and can’t do during the suspension.
- Provide an internal point of contact for the employee
- It’s important to assert at this point that the purpose is to investigate and suspension is not pre-judgment of guilt.
Pay during a suspension
Employees should usually receive their full pay and benefits during a period of suspension.
An employee suspended due to a serious allegation of misconduct must receive their full pay unless:
- they are not willing or are able to attend work (for example because they are ill)
- there is a clear contractual right for an employer to suspend without pay or benefits.
However, an employer should seek 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.
An employee suspended from work on medical grounds must receive their full pay unless they:
- have been employed for less than one month
- are not willing or able to attend work (for example because they are ill)
- have unreasonably refused suitable alternative work
- have been suspended for more than 26 weeks.
An employee suspended on maternity grounds must receive their full pay unless they either:
- are not willing or able to attend work (for example because they are ill)
- have unreasonably refused suitable alternative work.
How long should a suspension last?
- A period of suspension should be kept as brief as possible and regularly reviewed to ensure it is still necessary.
- 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, the ongoing reasons for it, and how much longer it is likely to last.
- Regular contact should be maintained between the employee and their manager and/or point of contact during the suspension. 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.
- As part of a disciplinary procedure, an employee may be asked to not communicate with other staff while they are suspended. An employer should highlight that the employee still has a right to be accompanied by a trade union rep or work colleague at any disciplinary hearings.
- If an 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 are allowed to contact the individual.
Only in exceptional circumstances should an employer consider refusing a request. For example, where the work colleague is in genuine fear of the suspended employee.
Ending a suspension
Once a suspension comes to an end, the employee should 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 resolve any concerns.
The meeting could be arranged away from the workplace or somewhere at work in private.
Options if an employee believes their suspension has not been handled fairly
An employee with concerns about how their suspension has been handled should try to resolve the matter informally first.
Many issues can be resolved quickly by having an informal conversation with a manager or HR manager.
If the matter cannot be resolved informally, an employee could make a formal complaint (sometimes called a grievance). A complaint should be made in writing and set out the problem or concern.
An organisation should have rules and procedures in place for handling formal complaints.
Only after exhausting an organisation’s internal complaints procedures should an employee consider whether they may make a claim to an employment tribunal.
For most tribunal claims there is a three-month time limit for an employee to submit a claim. However, this time limit does pause if Early Conciliation is taking place.
As with most challenging scenarios in the workplace it is the role of the employer to act as an arbiter presiding over the steps drawn from your company policies in a calm and common-sense manner.
Becoming drawn into arguments, taking sides and failing to adopt a neutral position will not reflect well if the case escalates and becomes a matter heard by a tribunal.
Staff handling such difficult HR issues should be suitably trained and experienced however if you do not possess the resources within the organisation you should always consider the option of seeking guidance from those who are well versed in suspension protocols.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
