What to consider when suspending employees?
When faced with a disciplinary situation or allegation you may decide that it is necessary to suspend an employee during the process, however you should ensure that you proceed with care and give full consideration to the reasons and your justification before taking action.
Questions to consider include:
Is there a risk if they remain at work?
If there are two employees involved, for example in a grievance situation, would it be fairer to remove both parties from the workplace temporarily in order to fairly investigate?
Are you using suspension as a punishment?
Why do you need to suspend them?
Above all suspension should not be seen as an indication of the employee’s ‘guilt’ or that the outcome of the disciplinary process is a foregone conclusion.
Check the employment contract
Once you have asked yourself the questions above, it is necessary to check the employee’s contract. If it includes an express clause allowing you to suspend the employee there is less likely to be an issue, however you will still need to consider the reasonableness of the decision to suspend and whether the employee could be significantly disadvantaged by their suspension.
If there is no contractual right to suspend an employee it is still possible to suspend on full pay, however if the employee has an implied right to be provided with work you may find yourself in breach of contract.
In the event that you do not have the contractual right to suspend an employee I recommend seeking advice about the specific employee situation before suspending.
Informing the employee
The employee should be informed verbally of their suspension and this should be followed up with a letter outlining the details. At this stage you may not know the full extent of the disciplinary issues you will be investigating but you should at least give the employee some information about why they are being suspended.
It is a very stressful time for employees, particularly if this is the first time they have been made aware of a potential issue, and therefore the more information that you can provide them the better.
You should inform them of the following (verbally and in writing):
1. The reason for their suspension, for example; you have been suspended in order that we can carry out an investigation into an allegation of bullying a colleague.
2. If they will receive full pay, and any other contractual payments or commission etc. Unless their employment contract state otherwise employees should receive full pay.
3. The anticipated timescale for the investigation and suspension. It may not be possible to give a firm timescale but it is important to tell the employee, for example, that you anticipate the investigation will take 1-2 weeks and therefore depending upon the outcome your suspension will likely last for 1-2 weeks.
4. If you do not want the employee to contact colleagues or customers whilst they are suspended.
5. What will happen to any holiday booked during the suspension period, will this be honoured or carried forward.
6. That they remain an employee whilst suspended and therefore should be available during work time to attend meetings or engage in the investigation process.
7. A point of contact during their suspension whom they can discuss any issues, concerns or welfare issues.
8. I also recommend that you include a copy of your Handbook or relevant procedure/policy.
Employees always consider that if they have been suspended they will be dismissed, they rarely see it as a neutral act and believe that the outcome has already been predetermined. It is therefore important to maintain fairness and communicate the fact that it is just an investigation at this stage, and may not even result in disciplinary action, and that a further decision will be taken at the conclusion of the investigation.
Review the suspension regularly
The biggest mistake that employers make is to suspend employees and then effectively forget about them. Whilst the investigation may not be top priority once the employee has been removed from the situation, it is important to deal with the issue swiftly.
It can cause considerable stress for an employee to be left in limbo, not knowing what is happening from one week to the next. I therefore strongly recommend that you diarise to check in with the employee on a weekly basis at which point you should review whether suspension is still necessary and document this accordingly. You should communicate the review decision to the employee verbally and in writing.
Risks with suspension
Employers often forget that suspending an employee comes with risks if not handled correctly, and probably the biggest risk is that the employee will resign and claim constructive unfair dismissal on the grounds that the employer has breached their duty of trust and confidence.
Points to consider:
• Is it reasonable to suspend the employee or is there some other option? For example move to another location or department?
• Is the conduct complained of or alleged serious enough to warrant removal from the business?
• If the employee is a senior person in the business what impact would suspension have on their reputation with colleagues, customers, suppliers etc?
• Is there genuine reason and evidence to suggest that the employee is potentially ‘guilty’ of the allegations?
• Do you genuinely have good cause for suspending the employee or is it a knee-jerk reaction?
• Are you applying your decision to suspend employees consistently across the workforce?
• How much should the employee be paid during suspension? If the employees regular earnings are made up of commission and bonus payments you should consider how you are going to ensure the employee is not out of pocket as a result of their suspension. Failure to do so could result in a breach of contract claim.
A short suspension to genuinely investigate a serious issue should not cause you difficulty as long as you keep the employee informed at all times, however to minimise your risk it is important to seek advice before taking action.
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