Suspending an employee suspected of misconduct, even though suspension is a neutral act, can have a serious impact on their reputation, so it shouldn’t be automatic in every disciplinary investigation. Sometimes though, it is inappropriate for them to remain at work while allegations are investigated. So when should you suspend an employee during a disciplinary investigation and how should you go about it?
In what circumstances is suspension appropriate?
A proper investigation into allegations of misconduct is essential before an employer decides to dismiss the employee or take other disciplinary action.
In many cases, the investigation can be carried out while the employee carries on working, perhaps with an alteration to the role to avoid contact with certain colleagues, for example. Where the allegations are of minor misconduct, suspension would be disproportionate.
The suspension would be appropriate if the allegations against the employee involve gross misconduct, where if they were upheld, the employer would be entitled to dismiss the employee without notice.
An employer may be justified in suspending the employee for example:
• where relationships have broken down;
• in cases of gross misconduct;
• where there is a risk to an employee or company property, or responsibilities to other parties; or
• in exceptional cases, where there are reasonable grounds to suspect that evidence has been tampered with or destroyed, or witnesses pressurised.
How long should the suspension last?
A period of suspension should be as short as possible, while allowing the employer to carry out a reasonable investigation into the allegations of misconduct. Where possible, the employer should advise the employee of how long the suspension is expected to last, and update him or her as to the progress of the investigation. The employer should advise the employee if the investigation is delayed, and inform him or her of the reason for the delay, and what steps it is taking to ensure that it is completed as soon as possible. The suspension should be lifted immediately if the circumstances of the case no longer justify it.
Keeping an employee on suspension for an unnecessarily long time could entitle the employee to claim constructive dismissal.
Should the employee be paid while suspended?
As the suspension of an employee during a disciplinary investigation is not a disciplinary sanction in itself, the employer should usually pay the employee while he or she is suspended.
An employer can suspend an employee without pay only if it has a contractual right to do so, and even then it must be careful to act reasonably and avoid a breach of contract entitling the employee to claim constructive dismissal.
Should the employee be allowed to contact colleagues during the suspension?
The employer should make clear to the employee that he or she should not attempt to influence any colleagues involved in the disciplinary proceedings, but it may be unreasonable to prevent the suspended employee from contacting colleagues at work if this is necessary for the preparation of his or her case to answer the allegations.
The conclusion of the disciplinary investigation
On completion of the investigation, the employer must decide whether or not there is sufficient evidence to justify disciplinary action. If there is, the employer should follow its disciplinary procedure, and the “Acas code of practice on disciplinary and grievance procedures”, without undue delay. It may be appropriate for it to keep the employee suspended until the disciplinary procedure is complete if the circumstances still justify it.
If no disciplinary action is warranted, the suspension should be lifted and the employee advised to return to work without delay. It may be that the employee feels aggrieved by the period of suspension; therefore it is advisable for the employer to have a return-to-work meeting to enable the employee to discuss any concerns that he or she may have and allow the employer to address these concerns. The employer should assure the employee that the period of suspension has not affected his or her position, or continued employment, and that he or she will not suffer any future detriment as a result of the suspension.
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