In some circumstances, suspending an employee may be unavoidable. Suspension could be due to health and safety or medical issues such as pregnancy, or more commonly, while a serious disciplinary matter is being investigated.
In this guide for employers, line managers and HR personnel, we discuss the key considerations when suspending employees as part of a workplace investigation. The rules for suspending an employee will very much depend on the facts involved, although you should always bear in mind the following best practice advice when making any suspension decision.
When can an employer suspend an employee?
Suspension from work is where an employee continues to be employed under their contract of employment, but is asked not to attend the workplace, or undertake any work.
If the suspension relates to a disciplinary investigation, the employee may also be asked to refrain from having contact with colleagues, customers and clients, unless authorised to do so.
The circumstances in which an employer can justify suspending an employee may be set out within the individual’s employment contract, or in any staff handbook or on the staff intranet site. However, even in the absence of any contractual provision, or other written guidelines, provided there’s a sufficiently serious reason to do so, an employer can still suspend an employee from work. By way of example, you may be justified in suspending an employee during the course of a disciplinary investigation into allegations of gross misconduct. These could include, alleged physical violence, indecent behaviour, theft or fraud, misuse of company property, or significant breaches of health and safety requirements.
Suspension could also be justified where there’s been a significant breakdown in your working relationship with the employee under investigation for potential wrongdoing, or as between the employee and co-workers
there’s a risk that the employee could impede your investigation into the matter in hand, such as tampering with evidence or seeking to sway any witnesses. Or, you have reason to believe that the employee may deliberately damage property or cause reputational damage to the business, or there are potential safeguarding issues surrounding other members of staff, for example, where an employee has been accused of sexual harassment. It could also be that the employee is the subject of criminal proceedings, the outcome of which may impact their ability, or suitability, to continue working for you.
Still, suspension should not be perceived by an employer as an automatic default position when investigating a potential misconduct matter. In most cases, any employee under investigation should be permitted to carry on working within their existing job role whilst any allegations are investigated, without the need for suspension. Suspending an employee should only usually be considered where it’s absolutely necessary and there are no other alternatives.
Do you have to give notice before suspending an employee?
In theory, an employee can be suspended with immediate effect, without any prior notice, especially following a serious allegation of misconduct. However, even though the employee can be verbally informed of any decision to suspend, this must be followed up by written notification of their suspension, together with the reasons for this.
The employee should also be notified of their rights and responsibilities during the period of suspension, for example, whether they’ll receive full pay, whether they’re required to refrain from contact with colleagues, and how they’ll be required to remain contactable during the course of the investigation to answers any questions or provide their version of events.
They should also be informed of their point of contact during the period of suspension, such as a line manager or someone from HR, with whom they’re able to discuss any queries or concerns
the length of time that the period of suspension is likely to last.
If you make a decision to suspend an employee, you must also reassure them in writing that your decision to suspend is not, in itself, a form of disciplinary sanction, nor an assumption of guilt. You must be careful not to give the impression of having pre-judged any issues of blame, where the purpose of the suspension is only to investigate, and to safeguard your business or other members of staff, and should not be used in a punitive way.
Does suspension have to be on full pay?
In most cases, for any suspension to be deemed fair, there must be a sufficiently serious reason to justify the decision to suspend ‘and’ the employee should suffer no undue detriment. This essentially means that the employee must continue to receive full pay and benefits, despite the fact that they’re not required to work, unless their employment contract provides differently.
Where applicable, suspension on full pay should run for the entire period of suspension. In most cases, this will be pending the outcome of any disciplinary investigation and hearing. The employee should also continue to accrue annual leave whilst suspended from work.
What is the process when suspending an employee?
Having notified an employee in writing of your decision to suspend them, you must then conduct a full and fair investigation without undue delay to establish the facts of the matter.
This should involve taking statements from both the employee and any witnesses, and reviewing any other evidence, such as documentation, photos, or video and audio files. If, and only if, there’s a case to answer, should the employee be then invited to a disciplinary hearing.
Where a disciplinary hearing is to take place, the employee must again be given written notification of this decision as soon as possible, including details of the time and place, with disclosure of any evidence in advance to enable them to prepare a response. They must also be informed of their right, on reasonable request, to be accompanied at that hearing.
At a disciplinary hearing, the employee must be given an opportunity to put their case before you reach any final decision. Even where an employee is clearly guilty of misconduct that would justify dismissal for a first offence, there may be circumstances that mitigate the seriousness of the matter. Depending on the facts, summary dismissal will not always be a reasonable response, where you may need to consider providing a written warning first.
Having reached a decision, you must provide the employee with written notification, together with your reasons, and outline the right to appeal. An appeal should be conducted where the employee feels that the outcome was wrong or unjust, the procedure was unfair or they have new evidence to present. If, on the other hand, a decision is made in their favour, or there was no case to answer in the first place, their suspension must be lifted with immediate effect.
How long can an employee be suspended for?
There’s no fixed time limit on a period of suspension, where an employee can be suspended for as long as is necessary to conduct a thorough investigation and disciplinary procedure. However, any period of suspension should be made as brief as possible, whilst allowing for the investigation and any disciplinary hearing to take place. It should also be kept under constant review to determine whether the suspension remains necessary.
In some cases, it can be difficult to predict how long an employee will need to be suspended for although, at the very least, the employee should be advised that any investigation into the matters alleged will be undertaken without unreasonable delay and, if there’s a case to answer, that any disciplinary hearing and decision-making will be dealt with promptly. The employee should also be kept regularly updated on how long their suspension will last.
What are the legal risks to avoid when suspending an employee?
The uncertainty surrounding the rules for suspending an employee mean that safely navigating this area of law can be a legal minefield. In circumstances where there are no reasonable grounds for suspension, or the way in which the suspension is handled is unfair, an employee may feel forced to resign and claim constructive dismissal.
For example, any failure to review the period of suspension, or to provide the employee with regular updates as to how long the suspension is likely to last, could arguably amount to a breach of the duty of mutual trust and confidence. Equally, any unacceptable delays in the disciplinary investigation could easily, and irreconcilably, damage your working relationship, such that the employee may have good cause to resign and claim damages.
Employers should ensure that they always suspend on full pay, save except where the employment contract allows otherwise, and even then you must still act reasonably in all the circumstances, or risk a claim for unlawful deduction of wages. You must also tread carefully to ensure that you follow a full and fair disciplinary procedure to avoid any allegations of unfair dismissal, where a dismissal decision is reached, or even breach of contract.
How can these risks be avoided when suspending an employee?
Even where your workplace rules for suspending an employee clearly encompass any scenario you’re presented with, or where suspension is otherwise justified by reason of allegations of gross misconduct, a thorough investigation should still be undertaken — and, where there’s found to be a case to answer, a full and fair disciplinary process followed.
You must also ensure that the suspension is, in itself, handled fairly. This means that you must provide the employee with written notification of the decision to suspend and your reasons for this. You must also explain the employee’s rights and responsibilities during the period of suspension, their point of contact and the length of time that the suspension is likely to last.
Even though an option of last resort, suspension doesn’t necessarily mean you’ve acted unfairly within any disciplinary and potential dismissal process. The rules for suspending an employee are all about balancing the rights of the individual against your right to safeguard your business, and other members of staff, in circumstances where the employee ‘may’ be guilty of serious misconduct. As unpaid suspension is more likely to give rise to allegations of unfairness or breach when it comes to your disciplinary procedures, not least where the outcome is dismissal, it’s always best to suspend on pay so as to minimise the risk of litigation.
It’s also advisable that any investigation, and subsequent disciplinary procedure, is followed as quickly and efficiently as possible, recording all decision-making in writing.
What alternatives are there to suspending an employee?
Even where there’s express contractual provision to suspend an employee, or there are serious reasons that warrant suspension, it’s always important for you to consider alternative solutions. These could include transferring the employee to a different workstation or team to minimise any potential conflict with colleagues. transferring the employee into a different role within your business, although this should be on the same or no less favourable terms. permitting the employee to work from home or altering their working hours or placing the employee on restricted or supervised duties.
Adjusting the employee’s working arrangements, in most cases can remove the need to suspend an employee pending investigation. Only once all other options have been fully explored, and are rejected as wholly impracticable, should suspension be considered.
Suspending an employee FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
