When placing an employee under investigation, many employers consider whether suspension (pending the outcome of the investigation) is an appropriate action. Employees have certain rights, which means companies should weigh up several issues before making a suspension.
Alternatives to suspension
It should never be a ‘knee-jerk reaction’ to suspend, and there are many cases that show employers should only suspend if there are no reasonable alternatives. For example, the contract may state that the staff member has a right to be moved to another area of the business while under investigation, as an alternative to suspension. Suspension needs to be justified; for example, in circumstances where the employee poses a significant risk to others or of interfering with the investigation.
Contractual right to suspend
Check whether the contract of employment explicitly reserves the right for an employer to suspend the employee. If there are rights governing suspension in the contract, companies should ensure they act carefully to prevent these rights from being taken away.
Implied duties
Employers need to check if the staff member falls under one of the categories that provides an implied right to work. This only arises in certain situations, such as where the employee needs to exercise their professional skills frequently and needs to work for that purpose.
There is also an implied duty of trust and confidence between employer and employee that can obstruct the right to suspend, even if expressly stated in the contract. Companies need to consider whether the suspension can be avoided, and if this is not done there may be a breach of mutual trust and confidence by the company.
Regardless of whether suspension is expressly included in the contract, there is a term implied into all contracts of employment that an employer will only exercise the right to suspend in circumstances in which it is reasonable. The employer must have reasonable grounds for the suspension, and ensure that the period of suspension is reasonable.
Pay and benefits
In the vast majority of cases, staff are entitled to be paid (and continue to receive benefits) for the duration of the suspension. Unless there is a clear contractual term in place allowing for an employee to be suspended without pay, employers do not automatically have the right to withhold pay, and doing so could result in them breaching the contract and becoming exposed to an unlawful deduction from wages claim.
In relation to employee benefits such as private use of a mobile phone or car, taking these away may result in a breach of contract. Suspension is a neutral act, so employees therefore retain all of their employment rights. If the company is unclear what can be withheld from the employee’s possession, they should take legal advice.
Period of time and contact
Any period of suspension should be reasonable, as brief as possible and kept under constant review. Employees should be suspended for no longer than is absolutely necessary.
They should be kept updated on the terms of the suspension, and a point of contact should be provided.
Acas Code
The Acas Code of Practice on discipline and grievance provides guidance on suspension, stating that any period of suspension should be brief, kept under review and not used as a disciplinary sanction. Although this is just guidance, unreasonable failure to follow it could result in an increase of up to 25 per cent in any compensation awarded if an employee pursues a claim.
The decision to suspend should not be taken lightly, and employers should only do so if they have considered all employee rights discussed above and feel it is the only reasonable course of action that can be taken in the circumstances. They should always take legal advice if they are not clear on the rights of the employee.
Claire Brook is an employment law partner at Aaron & Partners