Suspension of an Employee for Alleged Misconduct
Top Tips For A Fair And Legal Suspension
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. In the UK, suspension should never be an automatic reaction.
It is a neutral, temporary measure used only when necessary, such as in cases of gross misconduct or to protect the investigation process. Always pay full salary and benefits unless your contract explicitly states otherwise.
Key Tips for a Fair and Legal Suspension
- Confirm it is not a punishment: Explicitly tell the employee (and put it in writing) that suspension is not a disciplinary sanction and does not imply guilt.
- Keep it as short as possible: Do not let a suspension drag on. Act quickly and thoroughly with your investigation.Keep it under regular review: You must continually assess whether the suspension remains necessary as new facts come to light.
- Set clear boundaries: Establish a designated point of contact (usually an HR representative or an appointed manager) for the employee. Make it clear they are not to contact colleagues, suppliers, or customers without permission.
- Support their wellbeing: Suspension can be highly stressful. Signpost them to mental health support, such as an Employee Assistance Programme (EAP) or occupational health services.
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.
Case Law Relating To Suspension
Key examples of UK case law shaping how employers handle suspensions include:
- Suspension as a Last Resort & “Knee-Jerk” Reactions Agoreyo v London Borough of Lambeth [2019]: The High Court ruled that suspension should not be a default reaction. An experienced teacher was accused of using unreasonable force and immediately suspended. The Court found this “knee-jerk” suspension to be a fundamental breach of the implied duty of trust and confidence. Each case must be carefully evaluated to ensure there is “reasonable and proper cause” for suspension.
- The Danger of “Pre-Judging” Guilt Gogay v Hertfordshire County Council [2000]: This Court of Appeal case involved a care worker suspended over abuse allegations. The Court held that suspending an employee automatically, without a proper preliminary investigation to establish if there is a prima facie case, can cause severe psychological damage to the employee, leading to a successful claim for constructive unfair dismissal.
- Presumption of Suspension Being a “Neutral Act” London Borough of Lambeth v Agoreyo [2019] (and reinforced by subsequent rulings): While the employer’s intention is often to treat suspension as a “neutral act” to allow a fair investigation, tribunals scrutinise whether this is actually true in practice. Suspending an employee often casts a shadow over their reputation, meaning alternatives (like moving them to a different project, working from home, or restricting system access) should always be explored first.
- Breach of Trust and Confidence Upton-Hansen Architects Ltd v Gyftaki [2019]: The Employment Appeal Tribunal (EAT) found that an employer breached the implied term of trust and confidence by suspending an employee accused of gross misconduct when the suspension was deemed unwarranted and not backed by a reasonable cause.
- Contractual Right to Suspend McClory v Post Office [1992]: The High Court determined that employers require an express contractual right or policy to suspend an employee. However, employers are not legally obligated to provide the suspended employee with every single detail of the allegations immediately before placing them on suspension
Why Employers Should Use Suspension Carefully
Suspension can have a significant impact on employees and workplace relationships, particularly within smaller businesses where teams work closely together. In some situations, unnecessary or poorly handled suspension can damage trust, affect employee wellbeing and increase the risk of grievances or claims that the employee has been treated unfairly.
Employers should therefore avoid treating suspension as a disciplinary penalty or an automatic response to allegations. In most cases, suspension should only be considered where there is a genuine business reason for doing so, such as protecting the investigation, safeguarding individuals or reducing operational risk.
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?
Typical Situations Where Suspension May Be Appropriate
Suspending an employee pending a disciplinary investigation is not a disciplinary penalty in itself. It is a temporary precautionary measure generally appropriate only when an allegation is serious (such as gross misconduct) and the employee’s presence poses a clear and immediate risk.Typical situations where suspension may be appropriate include:
- Protecting the Investigation: When an employee’s continued presence could allow them to tamper with evidence, delete digital files, or improperly influence potential witnesses.
- Risk to the Business: If there are credible allegations of gross misconduct (e.g., theft, fraud, or serious breaches of data security) and continued access poses a severe risk to company assets.
- Safety of Staff and Clients: If the allegations involve physical violence, severe bullying, or sexual harassment, separating the accused employee is necessary to protect colleagues, customers, or vulnerable individuals.
- Fundamental Breakdown of Relationships: In highly volatile situations where workplace relationships have deteriorated to the point that the employee cannot reasonably stay on-site while the matter is looked into.Employers must consider the above criteria before making the decision. According to Acas, the independent public body that provides free and impartial advice, suspension should always be the last resort after exploring alternatives, must be kept as brief as possible, and should generally remain on full pay.
Record Keeping
Every time an employee is suspended from work it is important to document:
- Why suspension was considered necessary,
- Alternatives considered,
- How long suspension is expected to last,
- Review points during the process, and
- When the period of suspension ended.
GDPR and Confidentiality Considerations
Employers should also consider confidentiality and data protection issues when suspending an employee. Allegations of misconduct often involve sensitive personal data and employers should ensure information is only shared with individuals who genuinely need to know as part of the investigation process.
Care should be taken to avoid unnecessary disclosure of allegations or investigation details within the workplace, particularly before facts have been established. Employers should also ensure that investigation notes, witness statements and suspension documentation are stored securely and handled in accordance with UK GDPR and internal data protection procedures.
Poor handling of confidential employee information during investigations can create additional employee relations, reputational and GDPR risks for SMEs.
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Learn More About GDPR And Employee Personal Data |
Why Getting it Right Matters
Failing to follow these steps properly or rushing to suspend can breach the implied duty of “trust and confidence.” This could potentially allow the employee to resign and claim constructive unfair dismissal.
Top Tips
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.
In SMEs, allegations of misconduct can feel particularly personal or disruptive, especially where the employee works closely with customers, handles finances or has access to sensitive information. However, employers should still avoid making rushed decisions before the facts have been established.
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