Suspending an employee: Our guide to making an informed decision
Employers should not avoid suspension completely, but a decision to suspend needs to be a considered one.
Suspending an employee is not a neutral act, no matter how an employer might describe it.
Suspension comes with stigma attached; it casts a shadow over the employee’s competence or character. That doesn’t mean that an employer should not suspend under any circumstances, but a decision to suspend needs to be considered and informed. It should not be a “knee jerk reaction.”
In certain situations (for example where a safeguarding risk exists) doing nothing will not be an option. However suspension may not be the only option.
So if you are under pressure to decide whether to suspend, what factors and risks should you have in mind?
- Consider the alternatives: Even agreeing with an employee a period of special leave, will carry less of a stigma than the unilateral act of suspension. Other options might be home working, working on specific projects or working in another workplace. You may ultimately choose to suspend an employee, but it is sensible to demonstrate that other options have been considered and discounted.
- Consider the cost: Suspension will be on full pay. In complex disciplinary situations it could last weeks, if not months. In commercial terms, is there any better, more cost effective alternative?
- Consider the evidence: Where you do reach a decision to suspend, then there must be some evidence to indicate there is cause for concern about the issue in question. A bare allegation should not lead straight to suspension without some indication that the allegation has some credibility. Clearly you are not going to wait for the outcome of a full disciplinary investigation before deciding whether to suspend, but the reasonable employer will want at least to understand that there is some evidence to back up the allegation.
- Consider how the matter may progress: If a decision is taken NOT to suspend when an allegation is first raised, that decision can be reviewed and changed as an investigation proceeds. On the other hand, it is far harder to suspend and then, part way through an investigation, reverse that decision and bring the employee back in to work.
- Consider the impact on the employment relationship: Suspension damages employment relations, sometimes irreparably. It is important to recognise that suspending an employee may well be the death blow of that relationship. In our experience this is particularly the case with senior employees where the stigma and the damage to a professional employee’s reputation can be devastating. You should recognise and factor in this risk when considering whether to suspend
- What does your policy say?: There are still some disciplinary procedures which refer to suspension being automatic where an allegation of gross misconduct has been made. If a procedure does say this it should be updated. Otherwise, it increases the risk that a decision to suspend is seen as an automatic (therefore “knee jerk”) reaction to a gross misconduct allegation.
Most suspensions will not, in themselves, give rise to claims against employers. Where an employee is suspended on suspicion of gross misconduct and is subsequently dismissed, the resulting claims are likely to focus on the fairness of a dismissal rather than the earlier decision to suspend. However, there are certain cases where suspension will, of itself, lead to claims against the employer:
- An employee can resign under circumstances of constructive dismissal.
- An employee can claim that the decision to suspend was so devastating that it caused her/him psychiatric injury
- An employee can claim that a decision to suspend is unlawful and apply for an injunction to restrain the suspension
- Discrimination claims may arise.
When dealing with a particular employee, you will generally have a feel for whether suspension may give rise to a claim in itself. If you are in doubt, we would be happy to help you assess the risks. However, in broad terms, it is advisable to approach decisions about whether to suspend with caution and careful thought.
Mark Leach (firstname.lastname@example.org) is a Partner in the Employment, Pensions and Immigration Team at Weightmans LLP and is based in Manchester. If you have any questions or concerns, please do not hesitate to contact Mark or speak to your usual Weightmans advisor.