Suspending an employee from work is a serious matter. So much so that the Court of Appeal has described suspension as a “drastic measure“.
Why is it serious, you ask?
Well, for one, you risk breaching the employee’s employment agreement if, without good reason, you stop them from carrying out the work they have been employed to do.
Not only that, the employee’s reputation among their co-workers or clients can be harmed if they are suddenly told to go home without a great deal of explanation.
Employees can hold you accountable for this harm if you have not acted fairly.
Of course there are some situations where suspending your employee seems like it is the only proper thing to do. In those situations, you may need to act swiftly.
This blog sets out some of the key ways in which you can reduce your risk, should you ever find yourself in a situation where suspension seems to be the only possible option.
TWO ELEMENTS TO A FAIR SUSPENSION
Reducing risk when suspending your employee is about acting as fairly as possible.
As with any action an employer might take that affects their staff, you must be seen to do only that which a fair and reasonable employer would do in the same circumstances.
Broken down, that means that the decision must be both:
• for a fair reason; and
• as a result of a fair process.
FAIR REASONS TO SUSPEND
Because suspension breaks the normal working relationship with your employee, the reasons for the suspension must be sufficiently grave to justify it.
Just because you suspect an employee has misbehaved will not necessarily cut it. There must be a link between the misbehaviour and the need to remove the employee from the place of work.
There are plenty of ways an employee may misbehave that do not require the drastic measure of taking them out of the workplace entirely.In short, the employee’s presence in the workplace must pose a threat to your business or to others.
There are at least three types of threats that might qualify, as described below.
Threat to health and safety
This is a paramount duty that will almost always justify suspension, so long as there are genuine grounds for your safety concern.
For example, if you have good reason to suspect that your employee has an infectious disease, or is impaired by drugs or alcohol, this could pose a serious threat to other staff and people who come into your place of work.
In these cases suspension should be coupled with a commitment to arrange for the employee to be tested during the suspension in order to determine if your suspicions are founded, and to determine when the employee will be all clear to return to work.
Threat to your business
Employers are entitled to protect their businesses from internal threats such as potential damage to their equipment or systems, or unfairly competitive behaviour.
If you suspect your employee is motivated to damage your business, by doing anything from:
- interfering with your client relationships;
- setting up in competition with you while still employed;
- damaging your equipment; or
- stealing money or deleting files,
you are entitled to act promptly to remove them from the possibility of having such a detrimental impact.
Again, your suspicions must be well-founded. But you do not need to have all the information to hand – you will normally need to carry out further investigations to ascertain if there are good grounds for your suspicions.
Threat to investigation
Sometimes when you need to investigate whether an employee has misbehaved, the investigation can be compromised if the employee is still in the workplace.
The mere presence of the employee at work can sometimes mean other staff do not feel like they can talk freely if you need to interview them as part of your investigation. They may not feel safe. Yet if they do not tell you everything they know, you may not get all the information you need to come to a fair conclusion as part of your investigation.
In other cases, there may be emails or documents that the employee is motivated to delete or destroy. You may want to ensure the employee does not have the opportunity to hide that evidence until you have fully completed the investigation process.
FAIR PROCESS TO SUSPEND
Even if you have a fair reason to suspend the employee, you must not send them home until you have given them an opportunity to feed into your decision-making about whether suspension is necessary. This is what is meant by a fair process.
The key requirement of a fair process is that you do not make up your mind to suspend the employee until you have spoken to them about it.
You may have a strong sense that suspending them from work is the right thing to do. However, until you have put the proposal to them and heard their views, you must not have made up your mind.
The process can be summarised in three steps.
- Step one: tell the employee you are thinking about suspending them and ask for their feedback on that proposal.
- Step two: listen to what the employee has to say (keeping an open mind as you listen).
- Step three: decide whether, in light of what the employee has said, you consider suspension is still appropriate.
What to consult about
But what are you asking them to comment on? If the need to get them out of the workplace is clear, what does it matter what the employee thinks?
The law encourages consultation because of the serious implications that suspension can have on an employee.
It can be very damaging to the employee’s reputation to be suddenly put out of the workplace. People may wonder where they have gone and suspect that they are guilty even before an investigation is carried.
If eventually your investigation into the matters you were concerned about exonerates them, then the damage to their reputation may be difficult for them to recover from. Suspicions about them may linger in the minds of their colleagues well after the suspension is over.
By consulting with the employee you get a chance to see whether they think there is some alternative that, while meeting your aims, would avoid the potential damage the employee will suffer by being suspended.
For example, if you are concerned about health and safety, perhaps they could work in another part of the business that would entirely remove the health and safety threat they pose to others.
Perhaps the employee is happy to remain away from work – even working from home if possible – so that there is no need for you to suspend them.
Furthermore, by discussing the issue with your employee you have the opportunity to agree with them how their reputation might be preserved while they are away from work. You might agree that other staff are told that they are on leave for some reason that both you and the employee find plausible.
Not only is consultation a core requirement of fairness, it gives both you and the employee an opportunity to agree as much as possible and avoid the unnecessary acrimony that can come when reputations are damaged and feelings are hurt.
Consultation can be less formal
Although consultation is important, it may be less important when suspending an employee to adhere to the formalities that are typical features of other disciplinary processes, if the urgency of the matter requires it.
That means that provided you have consulted with your employee about the idea of suspending them and if you need to suspend as a matter of urgency, you will not typically need to give advance notice of the proposal to suspend, or give the employee an opportunity to have a support person when you meet with them to discuss the proposed suspension.
In many cases a decision to suspend must be made quickly. You cannot propose the employee be suspended, then let them go back to the office and work for several days while they consider how they will respond. The whole purpose is to remove them from the workplace urgently.
Having said that, if the matter is not so urgent that you can afford to give the employee some time to get advice and support on the proposal to suspend, you should do so.
When it may be okay not to consult
The Employment Court has said that in some rare cases you may still be acting fairly if you suspend your employee without consultation at all.This point has not been widely relied on, but the Court had in mind cases such as where an employee presents an imminent threat to health and safety.
Perhaps the employee has acted violently towards others and risk repeating their behaviour. In those situations, it would be hard to criticise an employer for taking assertive action to remove the employee from the workplace.
Nevertheless, it is always best to err on the side of caution and assume that consultation is required.
DO I NEED A SUSPENSION CLAUSE?
It is easier to suspend an employee when there is a clear entitlement for you to take that action set out in the employment agreement. There can be no doubt about your authority to suspend in that event.
However, even if you do not have such a clause you can rely on, that is not necessarily fatal to your right to suspend, provided that your decision is fair in the ways already described and you have very good reasons for thinking suspension is necessary.
If you don’t have a suspension clause in your employment agreements for new staff though, you should seek to include one, so that your employees are clear that suspension is an option open to you where necessary and what the general terms of that suspension will be.
DOES SUSPENSION NEED TO BE ON PAY?
There is a presumption that an employee will be suspended on pay for the duration of the time that they are away from work.
That is because it is not their choice to not be working. If they remain willing and able to work, it is not fair that they not receive an income.
If the suspension drags on for reasons outside the employer’s control, it may be reasonable to stop paying the employee. Cases where this may be appropriate can include where an investigation into an employee’s misconduct is delayed at length because they face criminal charges and plead a right to silence.
However, these sorts of cases are likely to be rare, and you should again err on the side of caution by paying your suspended employee and only stop paying them once you have legal advice.
Best of all, ensure you have a suspension clause in the employee’s employment agreement that specifies when the suspension will no longer be paid.
HOW LONG CAN THE SUSPENSION LAST?
When communicating your decision to suspend, you should also tell the employee how long you expect the suspension to last and follow up by confirming this in writing.
You do not need to know an exact date when the suspension will end.
Normally, you won’t know when, or if, the employee will be able to return to work, because investigations into their misconduct may need to be carried out, or further information about the threat they pose to health and safety may need to be gathered.
This can take time and often takes longer than you expect.
The best approach is to link the end of the suspension to the conclusion of the investigation or information-gathering exercise that you will need to undertake. This gives you the flexibility that you need to carry out those exercises well, but at the same time gives the employee a sense of what to expect.
Suspension is a serious step.
As a result, you should be careful to ensure that you have a fair reason to suspend an employee, and you have consulted with them first about the proposal to suspend them, before you implement that suspension.