When can I suspend an employee?

An employer may wish to consider suspending an employee under investigation for serious incidents of misconduct. This may be appropriate where there’s a potential threat to the business or other employees, such as if the employee has been accused of sexual harassment for example.

Suspension can also be considered where it’s not possible to properly investigate the allegation if that employee remains at work, for example they may destroy evidence or attempt to influence witnesses. However, in all cases the employer should be careful not to give the impression of having pre-judged any issues of ‘blame’.

Suspension should not be seen by the employer as some form of punishment for the employee, but as a means of carrying out an investigation without obstruction as quickly as possible. Quite often, however, an employee will often see the suspension as a punishment and, unless handled very sensitively, it may send a strong signal out to an employee that the outcome of any disciplinary hearing is a forgone conclusion.

What is the correct process for suspending an employee?

An employee needs to be informed of the fact that they’ve been placed on suspension as soon as possible. This could be done verbally, but conversations to this effect should be followed up in writing. The letter or email should:

• Make it clear that the employee is suspended and set out how long it is anticipated the employee will be suspended for
• Explain the employee's rights and obligations during the period of suspension (for example, not to come to the work premises or to discuss the allegations with other colleagues)
• Notify the employee of a point of contact (such as a Human Resources manager) during their period of suspension

Any period of suspension should be as short as possible, the decision to suspend should be kept under review and it should be made clear that suspension isn’t considered a disciplinary action .

As an employer, am I contractually permitted to suspend?

If there’s no mention in the contract of employment about the right to suspend, the employer will need to consider whether the kind of work the employee does might give them a ‘right to work’. If there’s such a right, suspending could be a breach of contract.

A right to work might arise in cases where:

• The employee might be deprived of the opportunity of earning pay such as shift premium or commission
• The employee needs to maintain a public profile and needs to work for that purpose
• The employee needs to exercise their professional skills frequently and needs to work for that purpose (it’s likely that only a minority of jobs will satisfy this test)

It’s safest for the employment contract to explicitly provide a right to suspend the employee and a method of calculating pay during the suspension.

Even if the employer has a contractual right to suspend an employee, that right to suspend must be exercised on reasonable grounds and in a reasonable way.

Suspending an employee in breach of contract, or in an unreasonable way, could also breach what’s called ‘the implied term of trust and confidence’. The implied term of trust and confidence means that the employer must not behave in a way that might destroy or seriously damage the relationship between employer and employee. If an employee resigns because of such a breach, this is what’s called a constructive dismissal.

When would suspension be a breach of trust and confidence?

Suspension is a serious step and thought needs to be given as to whether it can be avoided. It may, for example, be possible to place the employee in another area of the business while the investigation is carried out.

Before suspending, the employer must be satisfied it has reasonable grounds for the suspension in order to avoid breaching the implied term of mutual trust and confidence. In each case, the employer will need to show that there had been reasonable and proper cause for the suspension. This could include considerations such as the strength of any initial evidence that exists and weighing up the relative ‘harm’ that each party involved might suffer.

In cases of serious or sensitive allegations involving senior employees, the potential repercussions of such an employee being suspended without good cause will be more serious. Thought should be given as to what colleagues, clients and other external third parties are told about an employee's suspension and the investigation behind it. You should take particular care that any statement made doesn’t show any assumption of guilt, as this may prejudice the fairness of a subsequent disciplinary hearing and could lead to a claim being made.

Do I need to pay an employee I have suspended?

Unless there’s a clear contractual right to do so, an employer will not be entitled to suspend without pay. Therefore, while the employee is suspended, they should continue to receive their pay and normal benefits.

In some cases however, an employer is entitled to deduct pay during a period of suspension. The starting point is the contract itself, and whether there’s a right to deduct pay for the period of any suspension.

Do I still need to pay the employee in full if the employee falls sick whilst suspended?

Where an employee who’s suspended falls sick, an employer may wish to review the amount of pay the employee is receiving. For example, under its sick pay policy the employee might only be entitled to receive statutory sick pay (SSP).

However, if the contract gives the employee a right to full pay during suspension, payment of SSP is likely to give rise to a claim for unlawful deductions from wages. If the employee is suspended first of all, and then becomes sick whilst on suspension, it’s likely that where their contract gives them a right to full pay, that the employee would continue to have the right to full pay.

An employer may therefore wish to address the potential of an employee being signed off sick during a period of suspension and the terms that will apply in such circumstances in its contractual documentation from the outset.

Are there any other claims that could arise from me suspending an employee?

An employer should ensure that it operates its suspension policy consistently. This is particularly the case where, for example, two or more employees are involved in an incident of misconduct and one is suspended and the other isn’t, without good reason for the difference in treatment. This might be a breach of trust and confidence but if the one who’s suspended has a ‘protected characteristic’ (such as gender, race, sexual orientation, age or disability for example) that the other one doesn’t, this might amount to a case of direct discrimination.

If you need to speak to an experienced employment lawyer for advice about suspending an employee or the terms or your employment contracts, please call us on 0330 041 5869 or contact us online here.