What is suspension?
Suspension is when an employee is sent home from work, usually while receiving full pay. Employers are entitled to suspend an employee pending an investigation of gross misconduct or other serious disciplinary matter. The right to suspend will usually be set out in employees' Contracts of employment or the staff handbook (if any). Whilst a suspension is not a disciplinary action by itself, it often leads to disciplinary proceedings.
Why might an employee be suspended?
highlight the seriousness of the matter
stop the employee from carrying on the gross misconduct that is being alleged
stop the employee from interacting with other employees or clients/customers of the employer, which may otherwise cause a detrimental effect on the business
enable the employer to properly investigate a disciplinary matter without hindrance from the employee
It’s important for employers to carefully consider a given situation and to make sure they only suspend somebody when doing so is a reasonable way of dealing with the situation.
How should employers deal with suspension?
Employers should tread carefully when taking the decision to suspend an employee. This is especially true if the employee is a professional person (eg a teacher). The main thing to remember is that suspension should not be adopted as the default position or a ‘knee-jerk’ reaction to a potential disciplinary matter.
Let the employee respond
An allegation of wrongdoing should be put to the employee before the employer makes the decision to suspend them so that they can respond. Not allowing an employee to respond to an allegation of wrongdoing could amount to a breach of trust and confidence, giving grounds for a constructive dismissal claim.
The employer should always consider alternatives to suspension. Such alternatives may include:
transferring the employee to another department
having them work from home
changing their working hours
placing them under supervision
When making such changes, care must be taken to ensure that the changes are only temporary and cannot be considered a demotion or otherwise humiliating to the employee. This helps prevent the employee from arguing that their implied duty of trust and confidence was breached.
Keep it short
If the employer makes the decision to suspend the employee, the suspension should be for as short a time as possible.
Document and review
Employers should document the decision to suspend so they can refer back to it at any point in the future. They can do this by sending the employee a Suspension letter - a letter that temporarily prohibits an employee from performing work pending a disciplinary investigation.
Suspension should also be kept under review. All personal information collected during the suspension procedure must be processed in accordance with your Data protection policy and Employee privacy notice.
What happens during suspension?
Can the employee take annual leave?
An employee can take holiday during a period of suspension. However, the purpose of suspension is to allow a reasonable investigation to take place (during which, it may be expected that the employee will attend a disciplinary hearing). Therefore, it is not recommended that an employee take annual leave throughout the entirety of their suspension.
Employees can always cancel pre-booked annual leave if it coincides with a disciplinary investigation; as long as they give the requisite notice.
Communicating with staff upon suspension
When communicating a suspended employee's absence from the workplace, employers should be careful not to make any suggestion of the employee's guilt (as the employer still owes the employee a duty of trust and confidence). What is communicated with staff should be agreed with the employee themselves.
Communicating with staff upon return to the workplace
In the event that the allegations against the employee are unfounded and the employee returns to the workplace, the employer may want to announce as such to staff members. The employer should also make sure the employee is up to date with their workload, and any training they may have missed out on during their suspension.
Suspension on medical grounds
In certain circumstances, a health professional may recommend that an employee is unfit to work. The employer should consider adjusting the working conditions or offering suitable alternative work. This alternative work must be on terms that are no less favourable than the original role (ie the pay rate must be the same). If it is not practical to make such adjustments then the employer may have to suspend the employee until it is safe for them to return to work.
Suspension due to a risk to new or expectant mothers
If an employee is a new or expectant mother then the employer must assess any risks in the workplace that may make it unsuitable for the employee to continue working. Common risks include if the role requires heavy lifting or carrying, long working hours or exposure to toxic substances. The employer should remove the risks and if this cannot be done then the employer should look into alternative options. Suspension should be the last resort and should only be applied if the risk cannot be removed.
Pay during suspension
During a period of suspension, employees should receive their full pay and benefits.
An employee suspended due to a serious allegation of misconduct must receive their full pay unless they are not willing or able to attend work (for example because they are ill) or there is a clear contractual right for an employer to suspend without pay or benefits. This will be outlined in the employment contract. Employers should rarely consider suspension without pay as this is more likely to be seen as a punishment procedure that could lead to accusations of an unfair disciplinary procedure.
An employee suspended from work on medical grounds must receive their full pay unless they:
have been employed for less than one month
are not willing to attend work (for example because they are ill)
have been suspended for more than 26 weeks
they have refused suitable alternative work
An employee suspended on maternity grounds must receive their full pay unless they are not willing to attend work (for example because they are ill) or have unreasonably refused suitable alternative work.
Sick pay during suspension
If a suspended employee is ill and is not able to attend work again when required then they should receive their usual sick pay. Just like any other employee, if the sickness lasts more than 7 days, they must provide the employer with a fit note. For more information, read Sick pay.
Suspension in summary
Employers should remember that suspension is not a 'neutral act' and should be used with caution:
always check the employee's contract to see whether there are any terms dealing with suspension. If there are, make sure these are complied with
check any statutory guidance which may impact the decision to suspend the employee (ie certain local authority guidance states that suspension should not be the default option). The ACAS Disciplinary Code of Practice should also be considered
other options should be exhausted first (eg the employee could work from home) and suspension should not be used as a disciplinary sanction
suspension should be for as short a period as possible and kept under review
Ask a lawyer if you have any questions about employee suspension.