Suspension can be the correct response to alleged serious misconduct by an employee, but employers should proceed with great care and avoid ‘knee-jerk’ reactions at all costs.
Before suspending an employee, you must be satisfied that you have firm grounds – for example if an employee has threatened violence or damage to property and the investigation would be hindered if the employee remained at work.
It is essential to carry out a preliminary investigation because if a suspension is mishandled you could be liable for constructive dismissal, discrimination or a stress claim. This is not to mention reputational damage, which may be considerable if the media become involved.
Alternatives to suspension should also be considered, including placing the employee in another area of the business, or allowing them to working from home while the investigation is carried out.
Suspension is not neutral and knee-jerk reactions are never helpful
Many people believe that suspension is a neutral action, but it isn’t. Just as importantly, knee-jerk suspensions can have seriously damaging consequences.
The recent case of Agoreyo v London Borough of Lambeth is a salutary lesson on both these issues. The case involved a primary school teacher who was suspended following allegations that she had used unreasonable force in the classroom.
Despite a letter from the employer, stating that the suspension was a neutral action, the High Court ruled that the school failed to look into alternatives, or consider carrying out the investigation without a suspension. The court found that the suspension was a kneejerk reaction that breached the employer’s duty of trust and confidence to the employee.
What employers should do – and not do
A period of suspension should be kept as short as possible and be reviewed at regular intervals – at least every two weeks.
Employees must be told in writing and as soon as possible that they have been suspended. The letter should give the reasons for suspension and the expected duration, as well as setting out the employee’s rights and obligations while suspended, in particular that they should be contactable during working hours.
The letter should also explain that the employment contract is continuing but that the employee should not attend work or contact colleagues or clients unless they have explicit authority to do so.
Suspension is with full pay – otherwise you will be open to a claim for unlawful deduction of wages.
Handling communications with care
Announcements about the suspension should be handled with great sensitivity. Any presumption of guilt can result in the employer breaching the duty of trust and confidence, making it difficult for the employee to go back to work if the allegations prove unfounded.
Moreover, a suggestion of bias or prejudice could undermine the perceived fairness of any disciplinary action taken subsequently.
Protecting your interests while keeping your options open
By proceeding carefully and even-handedly, employers position themselves in a strong position to progress a case of suspected misconduct, without prejudicing their options to discipline, dismiss or take no further action.
For further advice on disciplining employees, call Michael Shroot on 0161 761 4611 or email him at michael.shroot@whnsolicitors.co.uk
