Suspending Employees – Should employees be suspended when they commit acts of gross misconduct?
It has become common for employees to be automatically suspended following allegations of gross misconduct, however, recent decisions including the judgment by the Employment Appeal Tribunal in Uwalaka v Southern Health Foundation NHS Trust have highlighted that more care needs to be taken when employers are considering suspending a member of staff.
It is now generally accepted that suspension from work will not be considered a ‘neutral act’ by the employee concerned. This is because the very act of suspending an employee is often seen as a form of punishment by colleagues or clients based on an assumption of guilt or the presumption of a predetermined outcome.
The recent decisions do not mean that suspension will never be justified, however, it is now important that each decision to suspend is based on specific facts or circumstances. For instance, suspension can be justified in order to allow an unhindered investigation so that the facts can be determined prior to a decision being made on whether there is a disciplinary case to answer. Nevertheless, suspension should really only be used as a protective measure whilst the employer investigates serious allegations of misconduct and even then they must have a genuine reason to believe that the employee’s presence in the workplace or performance of duties may either impede the investigation or present a serious risk to the interests of the business, its customers or employees.
Where suspension does take place, it should only be for as long as necessary to complete the investigation and should remain under review. An employee’s suspension should always be reconsidered following the conclusion of the investigation stage even if disciplinary action is required.
Despite the insinuation, it should be made clear to any employee who is suspended in the letter confirming their suspension that the suspension itself is not a disciplinary sanction and it does not form part of the disciplinary process. With this in mind, an employee does not generally have the right to be accompanied to an investigation meeting (suspended or otherwise), however, in certain circumstances it may be good practice to allow them to be accompanied.
As with all cases, employers should keep in mind the ACAS guidance and ensure that they deal with suspensions fairly, consistently and without unreasonable delay. Employees returning to work after suspension must return to their same role in order to avoid any argument that they have suffered a detriment.
An employer who does suspend an employee runs the potential risk of the suspended employee claiming breach of contract. Such a claim would undoubtedly arise when an employee is suspended without pay, which would also provide grounds for unlawful deduction from wages and constructive dismissal complaints. Properly drafted employment contracts and disciplinary procedures should confirm the employer’s right to suspend.
So should employees be suspended when they commit acts of gross misconduct then? It really does depend on the facts of the case, however, the key guidance to take away from the recent cases on this are that suspension should never become routine or an automatic part of any disciplinary procedure even for allegations of gross misconduct.