To help small business owners better understand the question of when to suspend an employee, we have drawn up this best practice guide.
Suspension is largely used as a tool by employers to deal with a serious allegation of misconduct against an employee. Medical grounds, or risks posed to a new employee or an employee who is an expectant mother are other times where suspending an employee can be used. But we’ll concentrate here on the situation where a serious allegation of misconduct has been made.
Suspending an employee in a disciplinary situation
Suspension should be used sparingly in a disciplinary situation. Most disciplinary issues can be dealt with while the employee remains at work. On the other hand, an employer should not shy away from suspension if there has been a breakdown in the working relationship with an employee.
Employers should also consider suspension if there is a risk of the employee creating problems for witnesses, or there is a possibility that the employee might tamper with evidence.
The employer should also have regard to any risks to other employees, or risks to the ongoing running of the business.
If there are criminal proceedings arising from an employee’s conduct this may affect whether they can do their job or not, and this is another situation where suspension can be considered.
Alternatives to suspending an employee
Even when as an employer you consider that suspension would be appropriate, alternative courses of action should be considered.
These may include:
- reorganising the employee’s working situation in some way that would make suspension unnecessary
- changing the hours that the employee works or where they work from
- in some other way restricting the employee’s duties to avoid suspension
Suspension should only be used as the final option to enable the employer to deal with serious allegations of misconduct.
Detailing suspension in an employment contract
As suspension is part of the disciplinary procedure, the terms of the employee’s contract should make clear exactly what suspension is, or perhaps rather, what it is not.
There should be no assumption of guilt and it is not in itself a disciplinary sanction. Suspension can be damaging to an employee where they are exonerated after the disciplinary process.
So consideration should be given to keeping the suspension confidential, and discussions can be had with the employee as to how the suspension is to be explained to colleagues.
Suspension procedures to safeguard the business
In a case of serious misconduct, the employer should always be concerned with the security of their business – and this might involve:
- immediately removing the employee from the work place
- taking from them any passes or IT access
- requiring the employee not to make contact with other employees while the investigation is ongoing
Rules for carrying out a suspension
We should next look at how the suspension is to be effected. A suspension letter should be written that will clarify the reasons for the suspension and as far as possible its projected term.
Somewhat akin to ‘Garden Leave’, the employee should be required to be contactable during normal working hours.
The contract of employment might well lay out limited circumstances in which the employer will not provide full pay and benefits during an employee’s suspension, but this will not usually be the case.
Should an employer face a situation where they feel they can suspend without pay and benefits they should be careful to ensure that this is not in itself a punishment, particularly where no decision has yet been taken about the complaint.
The suspension should last for as short a time as possible. The employee should be kept up to date as to the progress of the investigation to the extent that it will affect the length of suspension.
Again, akin to ‘Garden Leave’, the employee remains otherwise employed, and if the employee is sick or wants to go on holiday during the suspension period the usual procedure should be followed as set out in the employment contract.
Finally, we should look at how the suspension should be brought to an end. Clearly, the employee should return to work immediately. A return-to-work meeting may well be necessary and can be arranged either at the workplace or somewhere private.
Correct procedure will see suspension carried out fairly
Employers should bear in mind what has been set out above. This will ensure that they conduct any suspension fairly. The employer must be sure that when the employee returns to work they have not left themselves open to a formal complaint.
If there are concerns about the suspension the employer should try and resolve this informally if possible. Otherwise the employer might find themselves facing a grievance procedure, which of course should be conducted in accordance with the terms of the contract.
Suspension is a small part of the disciplinary process but, as can be seen from the procedures detailed above, this must be actively acknowledged by the employer
The contract of employment should be clear on the suspension policy and the employer must follow the processes set out to the letter and act reasonably at all times, taking into account the suspended employee as well as the overall circumstances giving rise to the disciplinary process.
For more information on this potentially tricky subject, contact us at TM LAW LIMITED for honest, expert employment law advice.
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