ACAS has published new guidance on suspension from work. The main thrust of the guidance in a disciplinary context confirms the principle set out in earlier case law that suspension is a serious step and should not be an automatic stage or 'knee-jerk reaction'.
When is suspension appropriate?
Carefully consider whether suspension is necessary in the circumstances of each individual disciplinary case. Suspension should not be an automatic part of the process and should not be used to discipline an employee.
Here are some factors to take into account:
- How serious are the allegations?
- Is further investigation appropriate before suspending? Do you need to carry out initial discussions with witnesses / the accused employee?
- Who is involved? What is the employee's role, length of service, disciplinary record? Do they rely on continuous working to maintain their skills or earnings (eg. via commission)? Are they a professional in a 'vocation'? Have relationships at work broken down?
- Is there a risk to the investigation if the employee remains, such as influencing or intimidating witnesses; concealing or damaging evidence?
- Are there other risks if the employee remains? This might be to other employees or customers; theft of confidential information; damage to reputation, property, or business interests; repeat of the misconduct etc.
- Are there any alternatives to suspension, such as changing shift patterns, work locations, duties or reporting lines; or restricting customer contact or systems access?
- Is the matter being investigated by an external body e.g. police or a regulatory body?
- How have employees been treated in the past?
- Is there a discrimination risk in suspending the employee?
The ACAS guidance emphasises the point that you should only suspend an employee if you believe that it is needed to protect the investigation; the business; the person under investigation; or other staff.
The letter of suspension should explain why you consider suspension appropriate in the situation, and why any alternative options have been rejected.
How long should suspension last?
The period of suspension should be as short as possible and kept under regular review.
Keep the employee informed of progress during their suspension. There should be regular contact between them and their manager / point of contact - something highlighted in the ACAS guidance in the section on supporting an employee's mental health during suspension.
Do we need to pay suspended employees?
An employee should (as a general rule) continue to receive normal pay and benefits whilst suspended unless their contract gives you a clear right to suspend without pay. Any suspension without pay is more likely to be viewed as a punishment and could lead to accusations that the disciplinary procedure was not fair.
What happens if we get it wrong?
If you suspend where this is not reasonable, or the terms of suspension are unreasonable (for example, the period of suspension is unreasonably long) you may be at risk of an employee (with two years' service) resigning and claiming constructive dismissal (on the basis that you have breached the employment contract). Unreasonable suspensions could also lead to employees raising grievances, or employee relations issues such as loss of trust / lack of engagement / reduced productivity.
Deciding whether to suspend during a disciplinary investigation is not necessarily straightforward. Please have a look at our Workbox content on suspension (which includes an example letter of suspension), and contact a member of our Employment and Immigration team if you have any specific questions.