suspension Archives - Menzies Law

ACAS has published new guidance on suspensions in the workplace. It covers suspension during an investigation at work (available here) and also provides guidance on suspensions for medical reasons and during pregnancy (available here and here).

We’ll focus on suspending during investigations as that is the most common form of suspension and usually the one with the most pitfalls for employers.

The key message of the guidance is that employers should stop and think before suspending an employee and to carefully consider whether it is absolutely necessary.

Although employers are not required by law to follow the guidance, it reflects the current legal position and so failure to do so could lead to claims against the employer or make it harder to defend them.

The guidance is split into four sections and in summary it covers:

How to decide whether to suspend someone:

Only suspend when it is reasonable to do so: this is generally when the alleged misconduct is sufficiently serious and there is genuine risk to colleagues, customers, property or to the integrity of the investigation if it is not done. Do not use suspension automatically or as a ‘knee-jerk’ reaction (in which case, the employer could be open to a breach of contract claim by the employee). It will always be possible to suspend later in the investigation if circumstances change.

Consider the alternatives: ACAS clarifies that it is usually best to avoid suspension if possible and instead to make temporary changes to the working arrangements of the employee being investigated, such as:

– Altering shift patterns or location (including a different office or site) or from home

– Stopping them from doing part of their job (e.g. stop them handling stock if the employee is suspected of theft)

– Working with different customers or away from customers (e.g. if the investigation concerns a serious complaint from a customer)

– Stopping them from using a specific system or tool (e.g. removing access to the financial systems or tools if the investigation concerns a large amount of missing money).

Take care when more than one person is involved – the person who made the complaint should not be moved as to do so may risk a victimisation claim. Keep the reason for any changes confidential and agree any statement made to colleagues or customers about the changes with the employee.

Consider external investigations: Take into account an investigation by an external body, such as the police or a regulator, if relevant.
Weigh up the risks: This includes weighing the potential affect of suspension on the well-being of the employee being investigated against the severity of the risks to the employer (including its staff) if the employee is not suspended.

If the employer decides to suspend the employee it should make clear that the suspension is a neutral act in that it is not considered a disciplinary action. Emphasise that no decisions have been made about whether the employee has done anything wrong. If the employee does not agree with their suspension it should be dealt with informally or as a formal grievance.

Process for suspension

Take care in how you tell the employee: Do so in person if possible and break the news sensitively. Confirm that they will continue to receive their full pay and benefits and offer support. Also explain (as far as possible) the reasons for the suspension and next steps. Follow up with confirmation in writing.
Keep it confidential: Employers should ensure that the suspension (and the reasoning behind it) remain confidential and should also discuss with the employee as to what they will tell staff who work with them. Not doing so could lead to breach of data protection laws and the implied term of trust and confidence (and a constructive unfair dismissal claim).
Suspend for as short a time as possible and keep under regular review: the longer the suspension continues, the greater the chance of an affect on the employee’s well-being and that there is a breach of trust and confidence.
Keep in touch: Make sure the employee is updated about the investigation, supported, and knows who they can contact if they have concerns (such as their manager or HR).

Give written notice of any investigation meeting and be prepared to rearrange if the employee cannot attend.

Access to workplace: although the suspended employee will not usually have access to the workplace or work systems the employer should be prepared to allow this where appropriate.

Manage the employee’s return to work: This includes deciding what to tell the other staff.
Decide whether to continue the suspension during any disciplinary process.

3. Supporting an employee’s mental health during suspension

Duty of care: ACAS reminds employers that they have a legal duty to support the employee during their suspension and to look out for their well-being.

Steps to help protect the employee’s mental health:

Clear communication
Clarify that suspension does not mean the employer has decided on the employee’s guilt
Take the employee’s views into account
Keep in regular contact with the employee and update them as to progress
Keep suspension as short as possible. Encourage the employee to use any support available: for example, from an Employee Assistance Programme (EAP), a mental health champion, their trade union, a mental health helpline, their friends or family, Citizen’s Advice or ACAS helpline.

4. Pay and holiday during suspension

The employee should continue to receive their usual pay and benefits (e.g. bonus or gym membership) during suspension. Not doing so can lead to claims (e.g. breach of contract or unauthorised deduction from wages) and employers are advised to take legal advice if they are considering this.
If the employee is sick during their suspension, employers should check the employee’s contract and their policies on what to pay. Employers are advised to take advice as this can get complicated.
If the employer agrees, the suspended employee can take holiday in the normal way. However, an employer is entitled to refuse or cancel someone’s holiday if they are suspended, but the employer should give the appropriate notice to do so and be prepared that this may upset the employee.

Tag: suspension

Government Reforms (1): ACAS – New Guidance on Suspension

Case update (1): Disciplinaries – What if there is a Police Investigation?

Case update (2): Rules of suspension

Newsflash : Warning – take care with suspension!

ACAS has published new guidance on suspensions in the workplace. It covers suspension during an investigation at work (available here) and also provides guidance on suspensions for medical reasons and during pregnancy (available here and here).

Tag: suspension

Government Reforms (1): ACAS – New Guidance on Suspension

Case update (1): Disciplinaries – What if there is a Police Investigation?

Case update (2): Rules of suspension

Newsflash : Warning – take care with suspension!

ACAS has published new guidance on suspensions in the workplace. It covers suspension during an investigation at work (available here) and also provides guidance on suspensions for medical reasons and during pregnancy (available here and here).

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