When dealing with employee misconduct, it’s sometimes necessary to suspend an employee with full pay while investigating the allegations. However, this decision should never be taken lightly. Too often, employers rush to suspend employees without a legitimate reason, even when the allegations are minor.
Legal risks of unjustified employee suspensions
Suspending an employee without reasonable grounds – or for longer than necessary – can breach the implied term of mutual trust and confidence. This can lead to the risk of constructive dismissal, where the employee feels forced to resign due to the employer’s conduct.
Additionally, if you suspend an employee with a protected characteristic (such as age, race, or sex) but not others in similar circumstances, they may be able to argue that they have been discriminated against.
Potential legal issues aside, hasty suspensions can damage the employee’s reputation and negatively impact the workplace. Other employees might perceive the treatment as unfair or overly harsh, resulting in lower overall morale and diminished trust in management.
Case law: is suspension a neutral act?
Over the years, courts have reminded employers that when investigating allegations of misconduct, suspension should not be adopted as a matter of routine.
One notable case involved a teacher suspended for alleged use of force in three incidents involving two challenging pupils. She resigned and brought a claim for breach of contract. The High Court noted that the letter confirming her suspension stated: “The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”
However, the Court held that suspension is not a neutral act, as it “changes the status quo from work to no work” and “casts a shadow over the employee’s competence.” It concluded that the suspension was adopted as a default position, taken as a knee-jerk response, and breached the implied term of mutual trust and confidence. The fact that the teacher resigned on friendly terms did not undermine or negate this.
When is suspension appropriate?
You should not suspend every employee facing allegations of misconduct. Suspension should be reserved for cases of gross misconduct or very serious disciplinary issues where the employer believes that:
- The employee’s continued presence at work poses a risk to the organisation, other employees, or clients;
- The employee could hinder the investigation (e.g., by tampering with evidence or intimidating witnesses);
- There is a significant breakdown in the working relationship between the employee and their manager or team.
Examples of appropriate suspension include:
- Accusations of physical violence against a colleague, posing a direct threat to workplace safety.
- Allegations of discrimination or harassment against a colleague.
- Serious fraud or theft, where the employee’s presence could allow them to alter or destroy crucial evidence.
- Severe conflict between the employee and their manager, making it impossible to maintain a functional working relationship.
Things to consider before suspending employees
When considering suspension, it’s crucial to assess:
- The nature and severity of the allegations. Only the most serious allegations, such as fraud, violence, or significant breaches of company policy, justify suspension.
- Whether suspension is necessary. Assess if the employee’s presence could hinder the investigation, pose a risk to others, or disrupt workplace operations. If not, suspension may not be justified.
- The length of the investigation. Suspension should be as short as possible and kept under review.
- Alternatives to suspension. Could you reassign the employee to another team or have them work from home? Ensure the alternative role is not humiliating or perceived as a demotion.
- The practical impact of the absence on your business. In smaller businesses, paying a suspended employee while also paying for cover can be a significant financial burden.
There is also specific statutory advice for school staff, which says suspension should not be a default option and should only be considered if there is no reasonable alternative.
If you decide to suspend
Hold a meeting with the employee. Explain:
- The reasons for the suspension;
- The nature of the allegations;
- The likely duration of the suspension;
- What they can and can’t do while suspended;
- The next steps;
- The potential outcomes of the investigation.
- Reiterate that suspension is not disciplinary action and does not mean the outcome of the disciplinary procedure is predetermined. Confirm all this in writing.
Note that employees have no statutory right to be accompanied to a suspension meeting, but check for any contractual right.
When announcing the suspension to others, be careful not to imply that the employee is being disciplined or is guilty of misconduct. Often, managers provide a vague reason for the employee’s absence, such as being away for personal reasons.
3 top tips for suspending staff safely
- Always treat suspension as a last resort after considering all other options.
- Clearly communicate that the suspension is not a disciplinary sanction.
- Keep the suspension as short as possible and regularly review its necessity.
