As an employment lawyer, I am frequently asked by employers when faced with a disciplinary issue: “should I suspend the employee and, if so, for how long and are they entitled to be paid?” I am also asked whether, by suspending an employee does it look as though the outcome of the investigation, or the disciplinary hearing, is predetermined.
Now, if you have read my blogs before, or attended any edition of Ask the Expert, you will know that my catchphrase is “it depends”, and I would hate to disappoint, so I am playing my greatest hit again today, and a couple of cover versions, as well as giving employers some top tips on suspending employees.
1. Check the contract and only use when necessary
Make sure that the contract or disciplinary policy provides for the right to suspend as otherwise you could be in breach of contract if you suspend, even where it is paid.
Suspension should never be used as a punishment, regardless of the nature of the allegation. It should never be the default position. The question to consider is: in the individual case, and provided there are no other options, will it serve a legitimate purpose?
By legitimate purpose I mean, if the employee is not suspended, will the investigation be prejudiced? For example, is the individual likely to influence witnesses or interfere with other evidence? Are they likely to cause damage to property or be a threat to customers, staff or suppliers? Will the suspension be helpful to the individual concerned due to the nature of the allegation?
There is no hard and fast rule (that’s another way of saying it depends, I know) but if the answer to all or most of these questions is yes, then suspension is likely to be appropriate.
2. Consider alternatives first
Even then, you need to make sure that you have considered all other alternatives first. For example, could the person work at home, or in a different location from the person who has made the complaint (provided the contract of employment allows you to do that)? Could there be a change of shift pattern so that the two individuals do not work together?
If the answer to any of these questions is yes, then you should pause to consider the alternative before proceeding with suspension.
Employers often think that suspension should be used where the complaint is one of gross misconduct but, actually, it should be used where, having considered the relevant circumstances, it is the most effective way to manage the immediate situation and the initial steps of the process.
The decision to suspend can be one factor in deciding whether an employee’s dismissal is fair, which is why it is important that you consider the decision carefully.
3. Keep it under review and for no longer than necessary
As the disciplinary process moves forward, you might decide that suspension is no longer necessary or appropriate and, in that case, you should bring the suspension to an end as soon as you can. That could be because there are other options now available which were not before, such as home or remote working, or the person who made the complaint is on annual leave meaning they won’t be at work for a period of time.
Similarly, you might have initially felt that suspension was not appropriate but, as the investigation progresses, new information comes to light that changes your mind. It is possible to suspend someone at a later stage, just bear in mind the points above before doing so.
The ACAS Code says that suspension should be as short as possible, kept under review and made clear that it is not a disciplinary sanction.
Suspension will usually also have to be with pay, unless your contract expressly provides otherwise.
In short, there is not a one size fits all approach (another fancy way of saying it depends, sorry). Look at the contract, facts and circumstances before you decide to suspend. Consider whether there are alternatives to suspension. If you decide that it is appropriate, make sure it is with pay, kept under review and is for no longer than necessary.
If you have any questions about this or any other Employment law matter then please get in touch with the Blackadders Employment team, with offices throughout Scotland.
