Top Tips for Dealing with the Suspension of an Employee for Alleged Misconduct
For any dismissal to be fair it is essential that a thorough investigation has taken place to determine whether disciplinary action is necessary. In my recent article How To Investigate a Potential Disciplinary Matter I touched briefly on suspension of an employee in more serious cases of misconduct. In this article I discuss suspension of an employee for alleged misconduct in more detail.
Suspension of an Employee for Alleged Misconduct
Suspension is a precautionary measure to protect both the individual and the company during a disciplinary investigation.
The ACAS Code of Practice on Discipline and Grievance
Where suspension is considered necessary the ACAS Code of Practice states that an employer should:
- pay the suspended employee during the period of suspension;
- keep the suspension as brief as possible;
- keep the suspension under review; and
- make clear that the suspension is not disciplinary action in itself.
The non-statutory guidance that accompanies the Code states that suspension may be necessary in the following circumstances:
- 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.
In Crawford v Suffolk Mental Health Partnership NHS Trust (2012) 2 nurses were accused of tying a patient to a chair with a sheet, although the employer’s decision to suspend the nurses did not contribute to the unfair dismissal finding, the Court of Appeal stated that suspension should not be an automatic response by employers. In their view to do so without considering whether or not it is appropriate in the particular employee’s case, is likely to constitute a breach of the implied term of trust and confidence. The Judge said:
“This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established….. even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is”.
Alternatives to Suspension
When considering whether the circumstances of a potential disciplinary situation are serious enough to warrant a consideration of suspension there are some alternatives which should be considered:-
- Can an individual remain on current duties with either additional supervision or some restriction on type of area of work (subject to operational requirements)?
- Can the individual be employed on alternative duties and will this remove any opportunity to re-offend.
- If the individual is allowed to remain on duty in either their own position or on alternative duties will their presence cause offence to members of the public or colleagues or harm the company’s reputation. If so, can this be managed?
- Would investigations be hindered if the individual remained at work?
Suspension should not be imposed as a knee-jerk reaction to allegations. Always question whether the alleged misconduct or behaviour really warrants a period of suspension.
Suspension may also be invoked where there is a potential risk to the business or where there is a risk of the employee interfering in any potential investigation.
The actual decision to suspend should be taken directly after the Fact-Finding stage and prior to the start of the formal Investigation (see my How To Investigate a Potential Disciplinary Matter).
The decision to suspend should be communicated in a 121 meeting with the Fact Finding or Investigating Manager and followed up in writing.
Suspension is a neutral act and does not imply guilt. Suspension should be without prejudice and on full pay. If pay is withheld then this could imply that a decision regarding any allegation has already been reached.
The period of suspension should be kept under review to ensure that it does not become unnecessarily protracted.
Make clear that the suspension is neither a disciplinary sanction nor an assumption of guilt.