Suspending an employee can be a necessary step in some workplace investigations, but it is also one of the more sensitive decisions an employer can make. Suspension should not be treated as a routine or automatic response to allegations of misconduct. It should be a carefully considered, proportionate measure used only where there is a genuine and reasonable need to remove the employee from the workplace or their normal duties while matters are investigated.
Suspension is not a disciplinary sanction
Employers should be clear from the outset that suspension is a precautionary measure, not a finding of guilt or a form of punishment. Describing suspension as a “neutral act” may be helpful, but employers should still recognise that being suspended can have a serious impact on an employee’s reputation, wellbeing and working relationships. A poorly handled suspension may give rise to claims, including for breach of contract, constructive dismissal and unfair dismissal.
What does the contract say?
Before suspending an employee, the employer should check the employment contract, staff handbook and any relevant disciplinary policy to confirm whether there is an express right to suspend. Where there is no contractual right, suspension may still be lawful in limited circumstances, but the employer must be able to show reasonable and proper cause. Even where the contract allows suspension, that power must still be exercised reasonably and in good faith.
Is suspension necessary?
Suspension should only be considered where there are reasonable grounds for believing it is necessary. Common examples include where the employee’s continued presence could interfere with an investigation, influence witnesses, put colleagues or customers at risk, create a risk to property or business interests, or undermine health and safety. Employers should avoid taking the decision before gathering enough initial information to understand the nature and seriousness of the allegations.
Alternatives
Employers should consider whether a less intrusive measure would adequately manage the risk. Alternatives might include temporarily changing the employee’s duties, moving them to another team or site, adjusting their shifts, limiting access to particular systems, requiring remote working, or asking them not to contact certain witnesses. Any alternative arrangement should be fair, reasonable, clearly explained and not presented in a way that appears punitive or humiliating as that also brings with it risks.
Keep a paper trail
The decision to suspend should be supported by evidence and properly documented. Prudent employers should record what information was available at the time, why suspension was considered necessary, what alternatives were considered, why those alternatives were not appropriate, and who made the decision. This record may be important if the decision is later challenged by the employee or scrutinised in tribunal proceedings.
Communication and confidentiality
Once the decision has been made, it should be communicated to the employee promptly, ideally both in person and in writing. The suspension letter should explain the reason for the suspension, confirm that it is not a disciplinary sanction or a finding of guilt, set out the employee’s pay and benefits position, identify any restrictions during the suspension, explain the expected next steps in the investigation, and provide a point of contact for queries or support.
Confidentiality should also be preserved as far as possible, with employers avoiding unnecessary disclosure of the suspension or the allegations, as this may damage the employee’s reputation and could undermine the fairness of the process.
Pay and benefits
In most cases, suspension should be on full pay and with contractual benefits continuing. Even where a contract appears to allow suspension without pay, employers should proceed cautiously because an unreasonable deduction may expose the business to legal claims.
How long is too long?
There is no hard and fast rule. A suspension however should last no longer than necessary. Employers should keep the position under regular review and consider whether suspension remains justified as the investigation progresses. If the original reasons for suspension no longer apply, the employee should normally be allowed to return to work, potentially with appropriate temporary safeguards. Prolonged or unexplained suspension can increase the risk of allegations that the employer has acted unfairly or damaged trust and confidence.
Suspension can be entirely an appropriate tool for employers to deploy where there is a genuine need to protect an investigation, employees, customers, property or business interests. However, all too often we see suspension being used as a reflex response, which employer can then struggle to justify.
Employers who are faced with this situation should consider the following:
- Check the employment contract, disciplinary policy and handbook for any suspension provisions.
- Gather enough initial information to understand the allegation and the risks.
- Decide whether suspension is genuinely necessary and proportionate.
- Consider and record any alternatives to suspension.
- Confirm the suspension in writing and make clear it is not a disciplinary sanction.
- Continue full pay and benefits unless there is a clear and lawful basis not to do so.
- Maintain appropriate contact and support during the suspension.
- Keep the suspension under regular review and end it as soon as it is no longer necessary.
If you are facing these issues, then the Employment Team at Ellisons is able to assist. Please contact us for further advice on managing suspensions, disciplinary investigations and related employment law issues.
