Suspension in the context of an investigation into serious misconduct is a well-trodden path for many HR professionals. Most employer disciplinary procedures will include suspension provisions that permit the employer to place an employee on suspension pending the investigation of allegations into allegations of gross misconduct.

However, employers should always pause before seeking to suspend because there are a number of legal obligations and risks which arise.

Why would a business suspend an employee?

Broadly, suspension should only be used if there is a reasonable and pressing need to quickly remove an individual from an organisation on a temporary basis. It should not be undertaken lightly or as ‘knee jerk’ response.

On 8 September 2022, Acas published guidance for employers on how they should handle staff suspension in the workplace. Acas says that an employer should only suspend an employee if it is appropriate, in circumstances such as:

• To carry out an investigation, if it is a serious situation and if there is no alternative.
• Medical or pregnancy suspension to protect an employee’s health and safety.

The LRA Code of Practice on Disciplinary and Grievance Procedures (Code of Practice) states that consideration may be given for a “brief” period of suspension to enable an unhindered investigation “… in certain cases, for example in cases involving alleged gross misconduct, where relationships have broken down or there are risks to an employer’s property or responsibilities to other parties …”  The Code of Practice goes on to state that the employer should suspend after “careful consideration” and where there is “necessity.”

In the context of a gross misconduct allegation, an employer may consider it necessary to suspend an employee while they are carrying out their investigation. However, what is clear is that it should not be the automatic or default position, and consideration must be given to the severity of the situation and whether there are alternatives.

In all cases, suspension should be an option of last resort, and the guidance from Acas recommends that employers move to suspend only if they consider there is a need to protect any of the following.

1. The investigation itself – does the employer have concerns that if the employee remains in work, they may seek to destroy evidence or influence witnesses?
2. The business – is there a genuine risk to customers, property or business interests?
3. Other members of staff;
4. The person being investigated.

Even in circumstances where there may be evidence to support an investigation, this will not provide automatic justification for placing an employee on suspension.

The correct process for suspension

The Code of Practice states that where a period of suspension is necessary, that period should be:

a)     as brief as possible;

b)     kept under continued review; and

c)      it should be made clear to the employee that the suspension is not a disciplinary action (i.e. that it does not suggest blame or confirmation that the allegations are correct).

Employees should continue to receive their full pay during a period of suspension.

Employers should confirm the decision to suspend the employee in writing to avoid any misunderstanding. Acas guidance recommends that an individual be advised of their suspension in person if it is possible to do so.

In communicating the suspension, employers should bear in mind that the decision and surrounding circumstances can bring about a great dealt of stress and anxiety for the individual it is imposed on. Employers have a legal duty of care to protect the health, safety and welfare of their employees. A failure, therefore, to manage the mental health and well-being impact of suspension could pose a risk to employers. It is important therefore to remember that in the process of carrying out an investigation, they should continue to provide support to the employee on suspension. The new Acas guidance addresses how employers can support an employee’s mental health during suspension with communication, contact and updates being central to the managing those issues.

Employers should avoid looking at suspension as a decision that is made only at the outset of an investigation process. Keeping suspension under review is important to ensuring it is in place for no longer than is necessary. Developments during the investigation and disciplinary process may result in there no longer being a need for continued suspension or open up an opportunity to explore alternatives to it.

Alternatives to suspension

Starting from the position that suspension should be an option of last resort, there are a number of alternatives an employer can consider.

An employer may be able to make temporary changes to working arrangements such as a move from office to home working, a move to another department or team, different shift patterns or amendments to job responsibilities. The Acas guidance gives the example of removing an employee’s stock handling responsibilities if the investigation involves loss of stock, or changes to customer facing roles in circumstances where there is an investigation into a serious customer complaint.

Confidentiality

Whether the employee is suspended, or a temporary alternative arrangement is put in place, employers should keep the suspension confidential in so far as it is possible. A failure to do so could result in a breach of the implied term of mutual trust and confidence in the employee’s contract of employment. Confidentiality can be a tricky area to navigate in a disciplinary investigation, and employers must take care to consider and decide what information they can give to the employee and to others about the suspension, the reasons for it and the investigation itself without impacting on the fairness and integrity of the process.

In most circumstances the employee being suspended should be informed of what is being investigated and why they are involved. They should also be told the reason for taking the decision to suspend.

In terms of the suspension itself, employers should talk to the individual about who may need to be informed of the suspension and what their colleagues will be told about their whereabouts.

Risks associated with suspension

For many employees, the right to suspend may not form part of their contractual terms. Therefore, in the absence of an express right to do so, and employee could argue that the decision to suspend results in a breach of the implied right to work. An implied right to work might most commonly arise if the suspension impacts on their earnings, for example, earning shift premiums or commission.

Acas guidance recommends that someone should get their usual pay and benefits during a suspension. Therefore, in the absence of any express contractual provision covering the right to suspend and the right to deduct pay during that period, for those employees who would usually have varied pay by reason of shift allowances, overtime and commission, it is recommended that employers look to provide pay during suspension that reflects average earnings, and not a base rate of pay which could see the employee’s pay reduced. The position may be the same with those on zero hours contracts where an employer may otherwise take the view that in the absence of any right to guaranteed hours, they have no right to pay.

As mentioned above, the act of placing someone on suspension, or keeping them on suspension to investigate potential misconduct could risk an employee resigning and claiming constructive unfair dismissal, where that act is considered to be a fundamental and repudiatory breach of the implied term of trust and confidence between the employer and employee. Whether or not a suspension amounts to a breach of trust and confidence will be fact sensitive as the following case examples show.

In Gogay v Hertfordshire County Council [2000] IRLR 703, the Court of Appeal held that whilst an investigation into allegations of potential sexual abuse were justified, the employer did not have reasonable case for suspending the employee where there was slim evidence against the employee. The employee was awarded damages for a depressive illness.

In the case of Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402, the Court of Appeal held that the employer had been wrong to suspend long serving nurses with previously clean disciplinary records while allegations that they had tied a patient with dementia to a chair were being investigated.

In Camden and Islington Mental Health and Social Care Trust v Atkinson UKEAR/0058/07 an employer’s failure to review and lift a suspension after one of the allegations against an employee had been dropped led to a finding that the employee had been constructively dismissed.

However, in the important case of the Mayor and Burgesses of the London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322, the Court of Appeal re-instated a decision made by the County Court that an employer had reasonable and proper cause to suspend a teacher who was alleged to have used unreasonable force against children. It was held that the suspension was necessary to conduct a fair investigation and could not amount to a repudiatory breach of contract. In making this decision, the Court of Appeal refined the approach to be taken to suspension: rather than underlining that suspension is not “a neutral act”, the Court of Appeal said that the crucial question is: has there been a breach of the implied term of mutual trust and confidence between an employer and an employee? The answer to that question would depend on whether there was reasonable and proper cause for the suspension. Unfortunately for employers, this will always be a very fact-specific analysis, so a decision will have to be made on a case-by-case basis rather than on the application of a broad policy or legal principle.

It is advisable that employers keep a record of their rationale for deciding to suspend (including the alternatives that were considered and why they were ruled out), their communications with the employee about the suspension, and evidence of that suspension being kept under review.  Remember that in any subsequent proceedings, this written record will likely be disclosed to the Court or Tribunal.

Recommendations

The decision to suspend an employee is one that should be taken carefully and as a last resort, with reasonable and proper cause. Employers should avoid knee-jerk suspensions and instead consider whether suspension is necessary on a case-by-case basis.  Suspensions should be kept under regular review, should be as short as possible and the employer should remember to keep lines of communication with the suspended employee open.