The Advisory, Conciliation and Arbitration Service (Acas) has published new guidance for employers on the thorny issue of deciding whether to suspend employees during a disciplinary or grievance investigation.
Often, when a complaint or a disciplinary issue initially arises, deciding whether to suspend the subjects of the investigation is high pressured and time sensitive. There can be tendency to automatically suspend the employee without much thought. We set out below the key takeaways from Acas' suspension guidance, and the potential pitfalls of getting it wrong.
Do you have the contractual right to suspend?
First, check whether you have an express contractual right to suspend an employee. Whilst not always essential, an employee could argue that the suspension is in breach of an implied right to work if there is no express contractual right. This will be particularly relevant if, for example, the suspension would prevent the employee earning commission or other forms of performance-related remuneration.
Consider if suspension is a reasonable step
Internal investigations can undoubtedly be stressful, both for the subjects of the investigations and any complainant or other witnesses involved. While it might be tempting to alleviate some pressure by suspending staff pending the outcome, it is important to consider if suspension is a necessary step. Suspension could be reasonable if you believe it is needed to protect:
- The investigation – for example, if you are concerned about someone hiding or damaging evidence or influencing witnesses;
- the business – for example, if the alleged misconduct in question means there is a genuine, current risk to your customers, property or business interests;
- other staff; and
- the person under investigation.
Think about alternatives to suspension
In considering whether suspension is reasonable, you should also think about any possible alternatives. The new Acas guidance reiterates that suspension should be a last resort for employers. Possible alternatives offered by that guidance are:
- Changing shift patterns;
- Directing the employee to work in a different part of the organisation;
- Asking the employee to work from home;
- Moving the employee to different office or site (subject to the wording of any mobility clause in their employment contract);
- Directing the employee away from customers; or
- Asking the employee to stop using any specific system or tool that is relevant to the allegations.
Of course, there will be many iterations and alternatives that could be considered in any individual scenario; the key message is that suspension should be limited to those areas where protection is really needed.
If you do decide to temporarily change an employee's working pattern or arrangement as an alternative to suspension, you should keep the reason for that change confidential from other staff where possible and discuss the best approach for messaging with the employee concerned.
Communicate the decision sensitively
If you have conclude that suspension is necessary, you should communicate that decision to the employee in person if possible. The Acas guidance says that it is good practice to allow them to be accompanied at any suspension meeting, but this may not always be possible. Employers should ensure that the suspension and the reasons for it are confirmed in writing. We recommend detailing in that communication the fact that alternatives to suspension have been considered and that none were appropriate. Employers would also do well to keep an internal note of options being discussed and discounted before the decision to suspend was taken.
Suspension should not be used as a disciplinary action and employers should support the employee during suspension
As set out in the Acas Code of Practice on Disciplinary and Grievance Procedures, suspensions are not disciplinary sanctions and they should be kept as short as possible.
It is important to keep in mind that suspension can have a significant effect on working relationships and the mental health of the people involved. Employers should make sure that they are supporting an employee's mental health during suspension by:
- Making it clear that no conclusions have been reached as to their conduct;
- Maintaining the employee's pay and benefits;
- Keeping the suspension confidential wherever possible; and
- Staying in regular contact throughout.
What are the risks of getting it wrong?
Case law highlights that suspension is not a 'neutral act'. It is recognised that suspension has the potential to damage the employee's reputation and mental health. It is also clear that unreasonably suspending an employee could be a breach by the employer of the implied duty of trust and confidence.
This means that even if there is a contractual right to suspend, if the decision to suspend is manifestly unreasonable and unnecessary, an employee may have grounds to resign and claim constructive dismissal or, in extreme cases, apply for injunctive relief for the suspension to be lifted.
In a case in 2019, the High Court granted an injunction in favour of a solicitor who was partially suspended from her duties due to performance concerns because the employer had breached the implied duty of trust and confidence. The employer was ordered to reinstate the employee and to allow her to undertake all her normal duties.
In making the decision, the Court considered the employer's failure to communicate with the employee both before and during the suspension. There was also strong medical evidence that the suspension had had a significant impact on the employee's mental health.
The case underscores the importance of not only ensuring that there are reasonable and proper grounds to suspend before taking action, but also the ongoing obligation to support suspended employees pending any outcome.