Can we require an employee to take holiday whilst suspended from work?

Suspension

Employers often use suspension as part of a process of undertaking an investigation into misconduct, complaints or allegations against an employee.  If the complaints are considered sufficiently serious, the employer may decide that it is necessary to stop the employee from working whilst they investigate.  Allegations that often result in suspension include those of possible misconduct, or inappropriate behaviour in the workplace.

During a suspension, the employee remains employed and is requested to stay at home, and not work, for a short period.

Written notification

The usual process is that the employee is entitled to be told in writing of the reasons for their suspension. The suspension letter will set out the way in which the suspension will operate.

What happens when an employee is on suspension?

When an employer suspends an employee, there is what is called an implied duty of trust and confidence. This duty means that neither the employer nor the employee side of the employment relationship will do anything to irretrievably break down the employment relationship. There is also a legal obligation not to discriminate against an employee, for example, because of race, age, gender, or disability.

ACAS has some helpful advice: https://archive.acas.org.uk/suspension, which sets out the general principles of suspension, including the following:

• Alternatives to suspension should be considered, such as moving the employee to a different team, area of work, or asking the employee to working from home, whilst the investigation is undertaken.
• An employee should receive full pay unless there is a clear contractual right to suspend without pay.
• An employee should be kept informed on a regular basis as to the duration of the suspension and when it is likely to end.

Most employers will have a grievance and disciplinary policy which sets out what the suspension policy and procedure is.  The policy may also state any particular time scales attached to the suspension process.

Once the investigation has been undertaken, either the employee will be asked to return to work, or called to a disciplinary meeting, if the employer feels there is sufficient evidence to call such a meeting.

Fair and unfair suspensions

Employers refer to suspensions as being a “neutral act” (not an indication of bias against the employee). Although from the employee’s side it is not a “neutral act” as they are prevented from working and must be told to stay at home and not contact any work colleagues. It is therefore not business as usual for the suspended employee.

Unless the contract of employment states that any suspensions will be unpaid, employees usually continue to be paid during periods of suspension. However, if an employee is unpaid during their suspension without such a clause in their employment contract, this may be considered as an indication of bias by the employer against the employee.

The suspension should be regularly kept under review and the employee contacted and updated on a regular basis, this ensures fairness and transparency throughout the suspension process.

In our experience, if a suspension is unfairly dealt with, it may lead to possible employment tribunal claims. If for example, an employee is put through a disciplinary process and subsequently dismissed, this can often lead to employment tribunal claims, and allegations of unfairness and bias on the part of the employer.

These allegations may have evolved either through their employment, or through the grievance and disciplinary process, and can often be traced back to the suspension process.  An unfair suspension, as part of an unfair disciplinary procedure, may leave the employer open to an increase in any potential compensation sums awarded to a Claimant at an Employment Tribunal by up to 25%, for failure to follow a fair procedure.

 Suspensions and holiday

During suspension, an employee is normally expected to be available and contactable during their usual normal office hours, for any meetings or any matters arising at work, or out of the investigation. Telephone or video conferencing, as well as face to face meetings, may be required.

If an employee has booked a holiday in advance or wishes to take some holiday whilst suspended, this would have to be confirmed and agreed with the employer.

Can you require an employee to take holiday when suspended?

Employers often stipulate employees are required to take holiday at particular times and give notice of this to employees in advance. For example, requests are often made that sufficient holiday is saved for the Christmas Break, when many businesses are seasonally closed.

In law the statutory minimum notice an employer is required to give an employee to compel them to take holiday is, twice the amount of notice as the holiday they wish the employee to take. For example, if the employer wishes the employee to take one week of holiday, advance written notification to the employee is expected a minimum of two weeks before the expected week to be taken as holiday. However, ideally the employer is advised to give as much notification as possible, so that the employee can plan accordingly.

The minimum notice period can be changed by a clause in the employee’s contract or a properly incorporated holiday policy.

Generally, employees are entitled to choose when they wish to take their holiday. Most people would not consider being suspended as good use of their “holiday”, unless they were actually able to go on holiday as opposed to be suspended.

Although, given the COVID-19 times we live in, a lot of us would like to go on holiday, if only that were possible! Therefore, in my view, asking an employee to use their holiday entitlement during their suspension would be an unreasonable and unfair expectation by the employer. It would be an unusual request for an employer to make in the circumstances.

As a practical point, generally if an employee is suspended, an employer would often prefer to ensure that the employee can be easily contacted in the event of any matters arising out of the investigation or suspension. 

We recommend that you do not require employees to take holiday during any period of suspension from work, instead the suspension reason should be resolved quickly and without delay, and holiday arranged after the suspension has concluded.

If you would like any advice about this please do not hesitate to contact any member of the team on 01983 897003.

If you are an employee who has been suspended from work you can find out more information about your rights HERE