Suspending an employee

If you need to investigate a serious or gross misconduct allegation against an employee, it may be better for the workforce, the employee in question, and the business as a whole, if the accused employee was away from the business during the process.

In cases such as this (and only if you’ve exhausted all other options such as placing the employee in a different department, for example), you can consider suspending the employee so that you can investigate properly.

Our step-by-step guide to handling employee misconduct contains more information on how to deal overall with employee complaints and/or bad behaviour requiring disciplinary action against an employee.

Suspension of an employee is only one piece of this overall jigsaw.

This guide focuses on how to handle suspension of an employee lawfully and efficiently.

Since this can be a very emotional situation for all concerned, and it is really important that you take the right steps and the right time, using the right words, we strongly recommend that you take advice in these circumstances – and before you suspend anyone.

A good adviser will move fast to ensure you have the guidance and reassurance you need before you act.

Deciding whether to suspend an employee

Ask yourself the following questions when you’re deciding whether it’s necessary to suspend an employee accused of misconduct:

1. Have you investigated, or are you investigating, to gain any evidence regarding the allegation, and have you found enough evidence to make the allegation seem reasonable (i.e. not malicious or frivolous) or likely?
2. Could the employee potentially cause ongoing disruption for colleagues and the business if they remain in the workplace during the investigation exercise?
3. If the allegations turn out to be true, would it be considered dangerous to have the employee in the workplace?
4. Is it a possibility that the accused employed could influence any witnesses in the investigation, if they weren’t suspended from the workplace?
5. Has the relationship between the accused employee and other members of the workplace completely broken down because of the allegations?
6. Is it not possible to move the accused employee to another area of the business while the investigations are taking place rather than suspend completely?
7. Is the accused employee’s own state of health (physical or mental) potentially at risk of harm by not allowing them to be absent during the investigation process?
8. Are there any other valid reasons that would make the investigation process difficult if they stayed in the workplace?

It’s vital that you can give very good reasons for any employee suspension – if you cannot provide evidence on one or more sound reasons, the employee could resign and claim constructive unfair dismissal.

How to suspend an employee

Tell the employee.

If you put an employee on suspension, you’ll need to inform the employee as soon as possible.

This should be prepared and ideally, personally handed to the employee in writing.

This communication should include:

1. The statement that the employee is suspended from work

2. The reasons for the suspension (emphasising that the suspension is in no way a form of disciplinary action, but instead a necessary way to support investigations)

3. Details of any evidence that has, so far, been found to back up the accusations

4. The expected duration of the suspension period

5. Details about their rights and responsibilities during their suspension, e.g.:

a. Their suspension doesn’t affect their employment contract

b. They should be available during normal working hours where needed to aid the investigation

c. They must not try to influence anyone involved in the investigatory process

d. They’re not permitted to contact business clients, or anyone in the workplace during their suspension, except for their appointed point of contact (the contact details for this person should also be included in this letter)

e. If relevant, they should switch on an out of office message on their email using approved wording to the effect that they will be uncontactable for several days and all enquiries and emails should be sent to [designated person] during this time

f. They must not visit the business premises during their suspension without express permission of their employer. If they need to attend the workplace (in order to pick up personal belongings or for any other good reason, for example), they must request access and it’s entirely at the employer’s discretion whether they are permitted to enter or not. If they do need to enter, they should be discretely accompanied by an appropriate member of staff

g. They are not permitted to discuss details of the allegations or investigations with anyone not involved in the matter

6. A statement that the business will do its utmost to complete these investigations as soon as possible and will let the accused employee know once the investigation is complete

7. A statement that the business management will keep all information gathered as part of the investigation confidential and will only disclose it to those strictly needing to know it to ensure that the investigation, and the situation triggering the need for it, may be resolved lawfully and swiftly.

Double check the employee’s understanding of what they are told.

Pay and benefits continue as usual

Unless you have a specific contractual clause in the employee’s contract stating otherwise, the employee should be paid throughout the suspension period in accordance with holiday pay calculations.

If an employee disagrees with the suspension

If the employee disagrees and this is because they consider the employer has not treated them reasonably and suspended without good reason, the employee may (in the worst-case scenario) treat themselves as (constructively) dismissed by their employer.

In such a scenario, the employee would have to show that the employer breached the implied term of trust and confidence by suspending them unreasonably.

Therefore, it is important you think carefully about why and how you suspend an employee (as explained above).

Another option open to the employee is to apply for an injunction to try to stop your intended suspension.

When might a court grant an injunction to prevent the suspension?

This could be granted where the suspension would be likely to undermine the employee’s competence and/or damage their reputation.

But the court will take both the employee’s and employer’s best interests into account when making its decision.

And just like any other time where an employee wants to express their concerns regarding a work matter, suspended employees are able to use the business’ grievance procedure.

You must take note of their grievance just the same as on any other occasion and follow the steps as necessary.

You can read our step by step guide to handling a grievance here.