ACAS has published new guidance on how to handle employee suspensions. The guidance is advisory rather than binding, but offers practical advice as to what should be considered by an employer when deciding whether an employee should be suspended.
Suspension is when an employer tells an employee to temporarily stop carrying out their work. It is most commonly used where an employer is carrying out a misconduct investigation. Suspension should not be used as a way to discipline and nor does it imply guilt - rather it is a practical and sensible way of allowing an investigation to be carried out diligently and without interference.
An employee should only be suspended in appropriate situations. The most common situation may be while an investigation is being carried out and the only short term solution is to ensure that the employee is not present in the workplace while the investigation is ongoing. Another scenario outside of the disciplinary arena may be a ‘medical suspension’ to protect an employee’s health and safety.
Suspension should be used as a last resort and only used in serious circumstances where there is not an appropriate alternative. The new guidance suggests that suspension should only be used if the employer believes it is needed to protect;
In all scenarios, the employer should start collecting information about the circumstances before considering whether a suspension is appropriate. It should not be used as an automatic response and the investigation be an afterthought. The employer should consider the basic facts such as what has happened, who is involved and how serious it might be. Once the employer has obtained these facts, it will be better placed to make a decision on the best way to proceed.
It might be that upon initial investigation there are other practical ways to address the issues at hand without the need for a suspension. Employers should consider taking actions such as:
If none of these options are suitable, then it may be that suspension is the appropriate response.
It is also worth considering the nature of the complaint. If it involves two employees (i.e a complaint is made by employee A against employee B), then when trying to find a practical solution such as those above, it is best practice to move the employee who the complaint is against, rather than the one making the complaint.
The employer should also consider the associated risks attached to suspending or not suspending the employee. For example, how might the mental health of the employee be affected if they are suspended, or do they pose a risk to other employees if they are not?
It is possible that the matter at hand may be a criminal matter, in which case the police could be investigating it. Alternatively, if the matter relates to a breach of professional standards, then a professional or regulatory body may be carrying out an investigation. The involvement of external bodies does not automatically mean that suspension is appropriate. The decision should still be taken on the facts the employer has available to them.
Once an employer has considered all of the points raised above, they will need to decide whether to:
If the employer decides to proceed with a suspension, the employee should be told face to face where possible. This is often the best way to break sensitive news. It is important to make it clear to the employee that the suspension does not mean that a conclusion has been reached that they have done anything wrong. When informing the employee of the suspension, the employer should make sure the reasons are properly explained and make it clear what the next steps of the process will be. It should also be confirmed that they will continue to receive their usual pay and benefits and made clear what their responsibilities are during the suspension period. The employer is not obligated to tell the employee everything and there will be parts of the investigation best kept private until the outcome is delivered.
It is also important that the employee feels supported and that continued communication is made with them throughout a period of suspension. This might involve allocating a member of the HR team or another colleague as a point of contact.
The suspension should also be kept confidential between the employer and the employee, who should also discuss what other employees will be told regarding the suspension. If either side break this confidentiality, it could be seen as a breach of the employment contract and have more serious repercussion.
Finally, it is important that the suspension lasts no longer than necessary. It can be a difficult time for an employee and the longer it drags on the more guilt they may feel, the more it could affect their health and wellbeing and in some cases it may do irreparable damage to the working relationship.
Suspension should be reviewed periodically to ensure that it is still appropriate.
There is a lot to consider when deciding whether to suspend an employee from the business and unfortunately there is no rule of thumb as to when to do so, with the individual facts of each case dictating whether or not it will be appropriate.
The ACAS guidance which can be found here and here is simply guidance for best practice. It goes into more detail than our summary in this article and employer’s should endeavour to adhere to it as best as possible to ensure that any suspension process is carried out efficiently and professionally.
If you are an employer looking for advice on how to manage a suspension, investigation or disciplinary process, please feel free to get in touch with our Employment team.
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