When Should an Employer Consider Suspending an Employee?

ACAS has published new guidance on the process and procedure of suspension.

The guidance emphasises the well-known principles that suspension is not a disciplinary measure and it should only be used when necessary and for as brief a period as possible.

Some of the key messages from the guidance are summarised below:

Possible Reasons for Suspension

The guidance states that an employer should usually only consider suspension if there is:

• a serious allegation of misconduct
• a workplace risk to an employee who is a new or expectant mother
• medical grounds to suspend

Serious Allegation of Misconduct

Suspension should never be an automatic approach for an employer when dealing with a potential disciplinary matter. In ACAS's view most disciplinary procedures will not require suspension as an employee is likely to be able to continue doing their normal role while the matter is investigated.

The guidance states that suspension should usually only be considered if there is a serious allegation of misconduct and:

• working relationships have severely broken down
• the employee could tamper with evidence, influence witnesses and/or sway the investigation into the allegation
• there is a risk to other employees, property or customers
• the employee is the subject of criminal proceedings which may affect whether they can do their job

The guidance advises employers to consider all other options before suspending an employee, including the employee temporarily:

• being moved to a different area of the workplace
• working from home
• changing their working hours
• being placed on restricted duties
• working under supervision
• transferring to a different role within the organisation (the role having similar status to their normal role, but the same terms and conditions of employment)

Where suspension does take place, it should be kept confidential where possible.

Suspension must be on full pay, unless there is a clear right within the employment contract to suspend without pay, or the employee is not able or willing to attend work. Suspension without pay is likely to be seen as a punishment and may lead to allegations that the disciplinary procedure was unfair.

Medical Grounds or Risk to a New or Expectant Mother

Employers owe a duty of care to their employees. Where a risk or hazard to an employee cannot be removed or accommodated, eg by the employee working from home, the employee may be suspended until it is safe to return to work.

In most circumstances an employee suspended on medical or maternity grounds must receive their full pay, unless they fall into one of the exceptions set out in the guidance, for example they have unreasonably refused suitable alternative work or are unable to attend work.

If a suspended employee is ill and would be unable to attend work in any event, they should receive their usual sick pay.

Best Practice

Employers considering suspension should ensure they establish what contractual rights apply in relation to suspension. In addition, it is important to be clear in your disciplinary procedure in what situations suspension can occur to ensure the option is available if required.

The guidance makes clear that suspension should not be an automatic reaction to disciplinary allegations and alternative solutions should be considered where possible. Where suspension is deemed to be necessary, you should ensure the employee is kept up to date with progress and continuing estimates as to how long the suspension will last.

For more information please contact Gareth Edwards in our Employment Law team on 0117 314 5220.