What is suspension from work?
Last week the UK was shocked to learn about an as yet unnamed MP who has been accused of sexually assaulting a co-worker but is yet to have been suspended from duty.
In this article we look at the different types of suspension together with the circumstances when it is appropriate to suspend someone from duty and when it is essential to suspend someone from duty, whilst hopefully dispelling a few myths along the way.
What is suspension?
Suspension involves someone being asked to temporarily remain away from work. It is usually used when a disciplinary matter is being investigated and it is deemed inappropriate for the employee to remain at work during that period of investigation.
It is not a disciplinary sanction in itself; it is used purely as a holding measure.
Under what circumstances would you suspend someone?
This is the area of main focus for this this article as it is the most common reason for placing someone on suspension.
When an allegation of gross misconduct comes to light it is advised to place the employee on suspension. The main reason for this is to ensure that an investigation can be carried out fairly but a failure to suspend may impact on the fairness of any potential dismissal.
For example, someone has been accused of stealing from the till. Rather than suspend they are allowed to continue working and handle cash because their employer is short staffed. Some weeks later, the allegations of theft are proved at a disciplinary hearing and the employee in question is dismissed on the grounds of gross misconduct.
In dismissing for gross misconduct, the employer is reasonable to conclude that the trust and confidence placed in the employee has been breached, hence they feel they have no other option other than to terminate the employment contract.
Please see our previous article on Gross Misconduct
However, what the employer cannot reasonably justify is the decision to allow that person to continue to work and handle cash when they had reasonable grounds to suspect they were engaging in acts of theft. In failing to suspend at the earliest opportunity and without good reason, they may have undermined the reasonableness and fairness of their decision to summarily dismiss their employee.
If we also take the example of the case in the headlines at the moment, the criticism surrounding the failure to suspend someone accused of serious sexual assault calls into question the duty of care shown to the alleged victim.
In cases of sexual harassment or sexual assault at work it is vital that the alleged perpetrator is suspended. This is not because they are assumed to be guilty but because it is completely unacceptable to expect the person who has raised the complaint to be forced to work alongside the alleged perpetrator whilst the matter is investigated. In doing so this gives out a clear message that their complaint is not being taken seriously. This in turn places the company at risk of a potential a constructive dismissal claim and a possible claim on the grounds of sexual discrimination. It is also a huge risk to other members of staff, clients, etc., who are potentially being placed in harms way should there be some foundation to the allegations raised.
Put very simply, suspension can also be a matter of safeguarding.
It is possible to place someone on suspension on medical grounds; during which the employee is entitled to full pay.
Medical suspension is used when someone’s health and safety is at risk, for example:
- A pregnancy risk assessment has identified that the use of a particular cleaning substance is a hazard and further investigations are required before the employee can safely resume their duties, if at all.
- An employee has been absent long term and the employer has serious concerns that they may be trying to return to work too early and perhaps require an occupational health assessment to be carried out.
Suspension on medical grounds are usually a last resort and often carries a significant risk in terms of discrimination, usually on the grounds of disability and (as per the example above) on the grounds of pregnancy. Hence it is vital that advice is sought prior to suspending anyone on medical grounds.
I have received a complaint of sexual harassment against one of my senior managers, they are in a very key role in the business, is it acceptable to remove the person who has made the complaint whilst the matter is investigated rather than suspend them?
You’re on very dicey ground with this!
Put bluntly, to place operational business needs above the safety of a member of your staff may not be your intention but if you do what your suggesting, that is exactly the message you will be sending out. It is also discriminatory and therefore this course of action has the potential to be more damaging to your business in the long run.
Can I just stop them working together?
This is a possibility but as we have already stated, you may be placing other members of staff at risk by simply moving the alleged problem.
You may be able to have them work from home and undertake tasks which do not cause any direct contact with other staff but again, care should be taken here and advice sought.
How do you suspend someone?
If the person is at work then they should be called to somewhere private, they should be informed that they are being suspended and why, they are then sent home.
If they are not at work, they can be contacted by telephone in the same way as the above.
They can simply be informed in writing.
A letter of suspension is always required and should contain the following:
- The reason they are suspended, e.g., an outline of the disciplinary allegations if it is a conduct issue
- The terms of the suspension i.e., that it is on full pay, they are not to attend their place of work etc.
- Their suspension is not a disciplinary sanction
- How long the suspension is likely to remain in place
- To whom they should raise any queries relating to their suspension.
Remember- all bespoke correspondence is drafted by our experts, including letters of suspension.
How long should suspension last?
For as little time as possible.
Afterall, you don’t want someone at home on full pay for any longer than necessary and in addition to this, being on suspension is very stressful for an employee.
Try to ensure you maintain contact during suspension. Also, during the course of the investigation consideration should continually be given as to whether suspension remains appropriate.
Can I suspend without pay?
It is said that if the employer has the contractual right to suspend without pay this is acceptable.
This is very rarely advised, if at all because an employer can rarely demonstrate that it is reasonable to suspend someone’s contractual rights during their employment.
It can also prejudice the fairness of a disciplinary process, as it gives an impression that a decision regarding the person’s guilt has already been made.
Hence, it is far better to consider suspension from work as paid.
What if someone goes off sick after being suspended?
Sickness absence will supersede suspension; therefore, you are likely to be lifting the suspension and placing them on sick leave/pay.
The investigation can continue but as to whether it is appropriate to invite the employee to any subsequent investigatory or disciplinary hearings, this needs to be handled very carefully as it will depend on the individual circumstances. Usually the disciplinary process is placed on hold until the employee is well.
Can my employee work elsewhere whilst suspended?
If they have another job in addition to working for you there is no reason as to why they cannot continue with this.
However, they are expected to be available to you during their normal working hours, so it would not be appropriate for them to take up paid employment elsewhere during their contractual hours for you.
My employee has failed to turn up to an investigation meeting- can I stop their pay?
If we are to assume that they have failed to attend the investigation meeting without good reason and that the investigation meeting was arranged in their normal working hours, then you are able to suspend their pay for the time they failed to attend the meeting. It doesn’t automatically follow that you can stop their suspension pay altogether.
Can I inform their colleagues or customers of their suspension?
No. You still have a duty of care to them when it comes to confidentiality, so you may simply wish to say that they are on leave.
Can a suspended employee maintain contact with colleagues via Facebook?
It’s a tricky one this but it will depend mainly on the nature of their contact.
On the one hand they may technically be breaching the terms of their suspension by contacting their colleagues but as long as they are not discussing work matters, or specifically the case against them, there isn’t a great deal you can do about this.
Finally, as always, each case and circumstance are different, so it is vital that advice from our experts is sought before action is taken to place someone on suspension. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0330 100 8704