Employers
Employers that wish to suspend an employee following an alleged act of misconduct need to consider that Tribunals do not consider this a “neutral act”. If handled incorrectly, suspension can irreparably damage the employment relationship and make a subsequent dismissal unfair. Suspension should therefore only be considered in the most serious situations. Ask yourself – is suspension necessary?
Acas Code of Practice
All employers should comply with the Acas Code of Practice – Disciplinary and Grievance Procedures. The Code makes it clear that suspension must be as brief as possible and kept under review. An unreasonable failure to comply with the Code can result in an uplift in compensation of up to 25% in the event that the employee pursues a claim for unfair dismissal.
Reasons to suspend
There must be a justifiable and legitimate reason to suspend – so consider this carefully – a Tribunal Judge certainly will! Consider:
- the need to protect the business
- the need to protect the employee’s colleagues
- the need to protect the integrity of the investigation
- risk to the employee’s reputation
Failings in the investigatory process, including inappropriate suspension, can result in successful findings of unfair dismissal under Employment Rights Act 1996 and of wrongful dismissal.
Alternatives to suspension should be considered and the reasons for any suspension should be documented (bearing in mind that any such documents will be disclosable to the employee in the event of a Data Subject Access Request under the Data Protection Act 2018 or in the event of subsequent litigation).
Duration
The company’s disciplinary policy will normally give an indication as to the likely length of any suspension. Generally, the requisite period of suspension will depend on the circumstances in question and the amount of investigation required. Unjustifiably long suspensions have resulted in successful claims of constructive dismissal, but lengthy suspensions are not unlawful per se if there are clear and proper reasons.
Contracts and policies
The employee’s contract of employment and any company disciplinary policy should be checked to ensure there is a contractual right to suspend. Doing so without contractual right may be a breach of contract! If there is then then an employer must act reasonably, have reasonable grounds for a suspension and ensure that the period of suspension is reasonable.
It is also vital to apply the suspension policy consistently, being mindful to avoid any treatment that might amount to discrimination under the Equality Act 2010.
Pay and Benefits
Any period of suspension for the purposes of investigating allegations of misconduct should be with full pay if employers want to avoid allegations of breach of contract and potential claims for unlawful deduction from wages. Greater challenges are faced by employers in respect of employees who receive substantial payments of commission and/or overtime and there are similar challenges for employees who are on zero hours contracts where there is no guaranteed or fixed pay.
Process
Consider the identity of the suspending manager, the identity of any manager that will conduct and/or be involved in the investigation, the identity of any manager who will be responsible for conducting the disciplinary proceedings and any manager who will be responsible for handling any appeal. Unless it is unavoidable, the manager responsible for the investigation should not be involved in the subsequent disciplinary proceedings or the appeal.
The employee should be informed verbally they are being suspended and confirmation in writing and, in addition to confirming the position on pay, and the terms of employment that will continue to apply, should make it clear what is being investigated, the likely length of the suspension and that the suspension is not considered a disciplinary sanction.
Consider:
- Whether the suspended employee should be able to contact colleagues generally, socially or in order to prepare to answer the investigation?
- Whether colleagues should be notified of the suspended employee’s absence and what they should be told.
Employees
Employers sometimes suspend employees who are being subjected to a disciplinary investigation. If you are suspended, you are naturally likely to be concerned that this means your employer thinks that you are guilty of the alleged misconduct, or that you reputation within the company will be affected.
It is important to understand that suspension is not a “neutral act” and if handled incorrectly can constitute a breach of the implied term of trust and confidence positioning you for a claim for constructive unfair dismissal.
Acas Code of Practice
Your employer must comply with the Acas Code of Practice – Disciplinary and Grievance Procedure. It makes it clear that suspension must be as brief as possible and kept under review. An unreasonable failure to comply with the Code can result in an uplift in compensation of up to 25% in the event that you pursue a claim for unfair dismissal.
Reasons to suspend
There must be a justifiable and legitimate reason to suspend and your employer will need to consider this carefully, asking themselves questions such as:
- Whether you are a threat to other employees
- Whether you might be a potential threat to the business
- Whether they can conduct a fair investigation if you are not suspended
- Whether there are alternatives to suspension.
The reasons to suspend should be confirmed to you in writing. Such documents will be disclosable to you if you make a Data Subject Access Request under the Data Protection Act 2018 or if you bring a claim.
Duration
The disciplinary policy will normally give an indication as to the likely length of any suspension. Generally, the requisite period of suspension will depend on the circumstances in question and the amount of investigation required. Your employer should explain to you why the period of suspension was required and there should be no unexplained delay in expeditiously investigating the allegations.
Contracts and policies
You should look over your contract of employment and any applicable disciplinary policy to check whether your employer has a right to suspend. If you are suspended without contractual right to do so, it may be a breach of contract.
The suspension policy should be applied consistently. It could amount to discrimination under the Equality Act 2010 if you believe you have been suspended because you have a protected characteristic.
Pay and Benefits
Your suspension should normally be with full pay. . Failure to pay may be a breach of contract and an unlawful deduction from wages.
In the event of unpaid suspension which cannot be justified or in circumstances where you are reinstated without progression to disciplinary proceedings, you may argue that you should be reimbursed for the loss of commission and/or overtime. If you are not on a fixed salary or are on a zero hours contract you might still be entitled to receive pay for the period of suspension.
Process
You should be informed verbally you are being suspended. Confirmation should always follow in writing and should make clear the allegations under investigation and the duration of suspension.
Ideally, there will be different managers that deal with different stages of a disciplinary process. If this does not happen it may be open to you to argue that the process is unfair.
Whilst suspended, you remain employed, and all terms and conditions of your employment continue throughout the suspension.
