Suspending an employee may be appropriate if there have been serious allegations of misconduct made against them and it would be detrimental to the investigation of these allegations to have the employee remain in the workplace.
It is crucial to keep in mind that suspension itself is not a punishment. Rather, suspension is a necessary measure to maintain a safe and conflict-free work environment, an unbiased investigation, or both. This guide discusses how to suspend an employee from work in accordance with employment law, should you establish that this is the only reasonable course of action.
The Advisory, Conciliation and Arbitration Service (ACAS) recognises that suspension of an employee may also be appropriate based on:
- Medical grounds (for example, if a health and safety professional recommended that it would be unsafe for an employee with a medical condition to work around a hazard)
- Risk to new or expectant mothers in the workplace (for example, if there was temporary risk of exposure to toxins which may harm an unborn child)
Employers must know how to suspend an employee from work as part of a disciplinary procedure, to ensure their responsibilities to that employee are met. Keep in mind that most disciplinary procedures do not warrant suspension. If the employee can continue doing their work throughout the disciplinary investigation without any detrimental effect to their own wellbeing or the wellbeing of other staff members, this is likely the most appropriate approach.
When to suspend an employee from work during disciplinary proceedings
Suspension of an employee should only be entertained as a reasonable option when there has been a serious allegation of misconduct made against them, and one or more of the following points apply:
- That employee’s workplace relationships have broken down to the degree that keeping them in work would have a detrimental affect on them or other employees, and general productivity.
- Keeping the employee in work risks harm to other members of staff, customers or property.
There is a serious risk that the employee could influence witnesses, tamper with evidence or sway the misconduct investigation in any other way. - The employee is subject to criminal proceedings which prevent them from doing their job.
Suspension proceedings must only be initiated following careful consideration of all the available facts; it must never be a “knee jerk reaction” to assumed misconduct. Keep in mind that accusation alone is not cause enough to suspend an employee; you must also have reason to think that there is substance to the accusation. Otherwise, you may simply be dealing with exaggerated or fabricated stories targeting an entirely innocent employee. It can be difficult to decide whether there is likely to be truth in an allegation of misconduct without launching a full investigation. Thorough consultation with other impartial staff members is the key to making the right decision.
Though suspending an employee is theoretically a neutral act which does not infer assumption of guilt, it does have an undeniable, negative effect on the employee. Suspension calls the employee’s character and ability to do their job into question and can have far-reaching consequences, even if the disciplinary investigation is dropped, and the employee is invited back to work.
We discuss reasonable alternatives to employee suspension towards the end of this guide.
Assuming you have ruled out all other options, use the guidance in the next section to ensure your suspension is orchestrated fairly and in a manner which should not result in legal repercussions.
How to suspend an employee from work lawfully
Employers must take care to meet legal requirements when suspending an employee and setting the terms of that suspension. You should inform the employee of the suspension decision with a written letter which includes the following information:
- The reason for the suspension
- The expected duration of the suspension
- Details of a manager or HR representative whom the employee may liaise with during the suspension
- Details of the employee’s rights and obligations during the suspension
- That the suspension is not a disciplinary step and does not infer the employee is guilty of the alleged misconduct (when suspending to facilitate a misconduct investigation)
When drawing up a suspension letter, the employer should consider whether any other measures are necessary. For example, where risk of harm to employees or property is a factor, the employer may stipulate that the suspended employee is escorted from the premises. It may also be appropriate to ask the employee not to have contact with their colleagues and other workplace connections during the suspension. However, you should be wary of doing this if the inability to speak to these parties would harm the employee’s ability to defend themselves during a disciplinary hearing.
These measures should only be implemented when necessary, as they would add to the stigma attached to the suspension. Any additional measures you decide to take must be communicated to the employee in their suspension letter.
Rights, obligations and pay for suspended employees
Typically, a suspended employee should retain their usual rights and rate of pay, as any reduction in benefits and pay would suggest that the suspension is a form of punishment. Arbitrarily suspending an employee without full pay could lead that employee to bring a claim of ‘unlawful deduction of wages’ against you, before an employment tribunal. The tribunal would likely consider suspension without full pay to mean that your investigation of the employee’s alleged misconduct is unfair, as you are effectively ‘punishing’ them before obtaining all the facts.
However, the employer may see fit to alter the employee’s rights and obligations and inform them of such in the suspension letter. Any alterations to the employee’s rights and pay must be justified and permitted within their employment contract. This is the case whether suspending an employee due to potential misconduct, medical grounds or maternity.
How to suspend an employee from work without pay
An employee can be suspended without pay if their employment contract indicates that this is possible. However, as their employer, you must be able to say you are acting ‘reasonably’ in making the decision to suspend without pay.
When the possibility of ‘suspension without pay’ is written into an employee’s contract, it is usually accompanied by specific, qualifying situations. For example, suspending an employee without pay may be permissible if that employee has been physically violent, verbally threatening or engaged in racist behaviour.
Suspending an employee without full pay is even less likely to be an appropriate choice if the suspension is based on a medical condition or maternity. Usually, this would only be an option if the employee has worked for the company for a very short time, has refused suitable alternative work or has been suspended for longer than 26 weeks.
Suspending an employee without pay is rarely a viable option for an employer, if there is no clause concerning suspension without pay in the employee’s contract. If the cost of suspending an employee with full pay is prohibitive – as may be the case with smaller businesses – the employer should consider alternatives to suspension.
Alternatives to suspending an employee
Before considering how to suspend an employee from work, employers should seek to rule out all viable alternatives. Aside from the obvious negative impact that suspension will have on the employee themselves, it can be an expensive course of action. Most disciplinary situations would warrant suspension with full pay, resulting in the employer losing a member of staff while still paying out a full wage. Depending on the complexities of the pending misconduct investigation, the suspension could drag on for many weeks, or even months. It is undeniably better for your business to decide against suspension, if this can be made to work.
In many cases, the reasons for considering suspension can be eliminated simply by altering the employee’s work arrangements. For example, if you have concerns about the employee influencing an investigation by communicating with another member of staff, there are other steps besides suspension which could be taken to prevent this from happening. In this instance, ensuring the employees in question are not placed on the same shift could solve the problem. This tactic would also work when tension between two or more members of staff threatens workplace harmony.
Rather than suspending the employee who is under investigation, you may choose to:
- Move the employee’s workspace to a different floor or area of the building
- Allow the employee to work from home
- Restrict the employee’s duties to avoid interaction with certain staff members, or exposure to sensitive materials
- Assign the employee to a different role within the organisation, while the investigation is carried out
- Stipulate that the employee must work under supervision
Employers should keep in mind that these alternatives are all preferable to suspending the employee. Not only would any of these options have a significantly less harmful impact on the employee’s work life and personal wellbeing, they have obvious economic advantages for the business.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
