Generally, you expect employees to attend their usual place of work during their contracted hours and fulfil all their contractual duties. However, there may be occasions where, at least temporarily you choose to instruct your employee not to attend work and to suspend them. In these situations, you will need to be clear on how suspension works and whether another option might work best for you instead, below is a brief guide to assist you.
- Can I legally suspend an employee?
- On what grounds can you suspend an employee?
- What else should I consider before suspending an employee?
- How do you suspend an employee?
- Do I need to pay a suspended employee?
- What if an employee falls sick whilst suspended?
- Could an employee make a claim against me for suspending them?
Can I legally suspend an employee?
The easiest way to make sure that your suspension is legal, is to insert a clause in the employee’s contract of employment allowing for suspension in certain circumstances. If there is no express clause in the employee’s contract, there may be an implied right to work in their contract, which would make suspension a breach of contract. This might cause issues if an employee is deprived from earning commission or a bonus due to their suspension, suffers a reduced public profile which is specifically required for their job or if they need to exercise their professional skills regularly. If you are concerned that these may apply, do seek professional advice from an employment lawyer. In any event, it’s likely that drafting an express suspension clause for use in the future is advisable.
Even where there is an express right to suspension, the implied term of trust and confidence means that the right must be exercised on reasonable grounds and for a reasonable period of time. Therefore, care must always be taken not only to check if there is a clause allowing for suspension in an employee’s contract, but also that if there is an express right to suspend, that this is exercised reasonably and alternatives are considered.
On what grounds can you suspend an employee?
There are some reasonable grounds on which to suspend an employee. For example, if there has been serious misconduct by an employee, you may wish to suspend them whilst you investigate. Particularly if there is a potential threat to your business or the working environment or a full and fair investigation would be at risk because they may destroy evidence or attempt to influence witnesses if at work.
Another reason you may consider suspending an employee or several employees is if relationships at work have broken down to the point where it is affecting the rest of the working environment or impacting on the ability of one or more people to perform their job. Where there is a disagreement, it is critical that you take a neutral stance and act fairly in respect of both parties involved in a disagreement, so as not to appear partisan. Appearing to favour one party over another could lead to future grievances and possibly even employment tribunal claims and so clear communication as to what you are doing and why to all involved, at the earliest opportunity is important.
There may be other reasons for suspension such as:
- Medical reasons
- Following risk assessment for a pregnant employee
- Health and safety reasons
- Alternative to dismissal
What else should I consider before suspending an employee?
Speaking to the individuals involved in the incident and being aware of their initial position on the situation can be helpful. As well as knowing whether suspension is legally the correct thing to do, you should consider the following before taking the step to suspend to ensure that it is reasonable in the circumstances:
- Are there any alternatives to suspension that could be implemented instead? There might be other options such as working from home, a different site, changing an employee’s hours or limiting their access to the areas of the business, specific tasks or other individuals which were the subject of the incident. Even a temporary change of role might be appropriate instead of suspension.
- What impact will suspension have on the employee? Depending on the circumstances and the individuals involved, the impact of suspension may be greater than the risk to the business or other individuals in the business if they attend work. The damage to the relevant employee’s reputation and their trust and confidence in you should be considered before suspending.
- Where will this leave the future relationship between the company and the suspended employee? Whilst suspension is not meant as a punishment, depending on how it is handled it may feel that way and if trust and confidence is breached that could mean a breach of contract claim and a permanently damaged relationship between the company and the employee.
How do you suspend an employee?
Having considered the legality and reasonableness of suspending an employee, if you think that is the best way forward, how should you suspend an employee?:
- Hold a meeting with the employee, in person if possible, to communicate your decision to suspend them. ACAS recommends that you allow the employee to be accompanied. Explain the reason for the suspension, that this is temporary pending an investigation, and that it is not a punishment or judgment as to guilt.
- Advise the suspended employee of how contact will be made while they are suspended and by whom. Also tell the employee the announcement that will be made internally and, if required, externally to the business about the employee’s absence. Reassure the suspended employee that beyond any required announcements to stabilise the business and those who will need to be informed for a full investigation to take place, the matter will remain confidential.
- Make clear to the employee how their terms of employment will be varied whilst they are suspended. They are not to attend the office, access computer systems and may have access withdrawn, or make contact with their colleagues or business contacts but they should remain available and contactable during their usual working hours, deal with enquiries from you and remain loyal to the business as an employee.
- Explain to the suspended employee that they will have an opportunity to meet and state their side of the story during the investigation process and that the suspension will be as short as possible and reviewed at regular intervals to check that it is still necessary.
- Keep notes of all meetings, investigations and interviews. All invitations to meetings, discussions during meetings including the above details at the beginning of an employee’s suspension and decisions at any point during the suspension should be confirmed in writing too.
Do I need to pay a suspended employee?
You will need to pay your employee their usual contractual pay and benefits while they are suspended, unless there is an express clause in the employee’s contract saying otherwise.
What if an employee falls sick whilst suspended?
Under your sick pay policy, the employee might only be entitled to receive statutory sick pay (SSP) when on sick leave, but if the employee’s employment contract expressly states that they are entitled to be paid in full during any period of suspension, payment of SSP instead entitle the employee to claim an unlawful deduction from wages has been made. To avoid this, you may want to seek advice from one of our employment solicitors about adding to your employment contracts what an employee signed off sick during suspension can expect to be paid.
Could an employee make a claim against me for suspending them?
As mentioned above, it is possible that suspending an employee is a breach of contract. If there is a breach of an express or implied term in the employment contract this may lead to a breach of contract claim by an employee.
Further, to avoid claims of discrimination you will need to ensure that your contracts and disciplinary policy, including the use of suspension operates consistently. A comprehensive written policy and up-to-date training for staff involved in implementing suspensions can help with this. Particularly where there is more than one staff member involved in an incident if one is to be suspended and not another there should be an objective and fair reason for this. If the individual who is suspended has a protected characteristic that the other one does not, this might amount to a prima facie case of direct discrimination, as they have suffered a detriment that the individual without the protected characteristic has not.
If you are concerned that your employment contracts or policies do not best protect you from claims relating to suspension or would like for these to be reviewed and updated, our specialist employment team can assist. Similarly, if an employee has already made a claim against you, we can act on your behalf.
It is important to see if suspension is the best course for your business in the circumstances. As well as checking whether you are best placed legally to suspend if you wish and on what basis you will want to make sure you are prepared and know the process to follow to stay the right side of the law. Suspensions which are well considered, minimal in time with clear and regular communication throughout and which are supported with written evidence are more likely to avoid liability for your business further down the line. Making decisions without the right advice could result in a claim being made against you and so do seek early professional advice from an employment lawyer if you are unsure.