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Suspending an employee: don’t gamble and make sure it can be justified

June 28, 2024

Those who know me from my previous blogs know that I am not much into politics. I do however hear the odd snippet of news when shuffling between Magic Soul and Absolute Radio 90s in the car to/from work. When I heard the news of certain politicians being investigated for allegedly betting on the likely date of an upcoming election, my initial instinct was of surprise. How are they even allowed to bet on politics? A good friend of mine holds a position within a mid to low-ish level football club and he is not allowed to bet on any football match. Anywhere in the world.

Without getting too much into the rights or wrongs of this particular saga, which is currently being investigated, I hear that a couple of those allegedly involved have been suspended. A timely opportunity to review the legal position when it comes to suspending an employee, I thought.

Suspending an employee is an entirely legitimate tool for an employer to use and is most common when investigating allegations of misconduct. However, it is not appropriate in all cases. Employers should be careful to avoid a “knee-jerk” reaction, or adopting an approach of suspending in every single case of alleged misconduct. Suspension is also possible in other situations such as when there are health and safety concerns, or in certain cases during pregnancy identified, following a risk assessment.

Is it necessary?

They key question for an employer to ask when considering whether to suspend is to establish whether suspension is necessary. For example, will the employee’s continued presence in the workplace hinder the investigation? Is there a risk that the employee will destroy evidence or intimidate witnesses? Could they harm the wider business (or themselves)? It is also possible to suspend where relationships have broken down. ACAS introduced a new Guide to suspension in 2022. This encourages employers to explore alternatives before deciding on suspension. Examples include moving the employee to another team, working from home, removing them from certain tasks or excluding them from accessing certain systems. In order to show that it has conducted a meaningful balancing exercise, a wise employer will create a file note or similar document to show the factors weighed up when deciding to suspend. While this might seem like the creation of extra work, you should certainly hedge your bets. There might not be a claim, but if there is, this file note could just be your ace in the hole.   

Risk of knee-jerk suspension?

Suspension is often considered a low-risk decision for an employer to take (in contrast, say, with a dismissal). However, suspension should not be taken lightly, particularly because of the consequences it can have on the employee. Particularly if the allegations are sensational with natural reputational consequences. There are cases where an employer has been found to have constructively dismissed (i.e. breached the employment contract) an employee when deciding to suspend. One such case concerned the suspension over sexual abuse where there was no evidence to substantiate the allegation. Another case was successful due to the employer’s failure to review and lift the suspension. Dark horses can win. 

Practicalities

A suspension should always be on full pay. Ideally, the employer will have the contractual right to suspend the employee before electing to do so. Challenges could arise if there is no contractual right to suspend, and the employee might miss out on certain shift premiums or other payments when suspended. The employee should be advised of the suspension and the reasons for it. This should be confirmed in writing. A suspension should be kept under review and should also be for no longer than is necessary (keep the employee advised of the progress of the investigation). An employer should emphasise that suspension is a precautionary measure and is not an assumption of guilt. ACAS emphasises the need to look out for the suspended employee’s mental health and giving the employee a point of contact within the suspension letter is a useful idea. If the employer has any wellbeing tools, these could be highlighted. 

If you have any doubt about a suspension. Beware of the risks. Be aware of the Guide. Be fair.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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