Legal-ease: Suspending an employee

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The question of whether to suspend during a disciplinary procedure does not always have a simple answer

Suspension may be appropriate where the misconduct is sufficiently serious that the employee remaining at work poses a potential threat to the business or colleagues. It may also be appropriate where it is considered there may be a risk to the integrity of the investigation. For example, witnesses may be deliberately or unintentionally influenced or the employee may have the opportunity to tamper with evidence.

But alternatives should always be considered, including moving the employee to another area of the business temporarily or a temporary alteration of duties. The period of suspension should be kept to a minimum and therefore it is necessary to keep the suspension under review.

A decision to suspend should be taken as soon as possible after allegations come to light. Delaying a decision risks sending the message that the employer does not take the alleged misconduct seriously. It follows that this could later undermine any disciplinary decision made. Once the decision to suspend has been made this should be communicated to the employee without delay and confirmed in writing.

The suspension itself is not a sanction or punishment but merely a tool to assist with a fair and appropriate disciplinary investigation. Care should be taken to avoid any suggestion that the suspension implies guilt or that the situation has been pre-judged. Where there is more than one party to the alleged wrongdoing then it would normally be appropriate to suspend both parties.

Any suspension should be on full pay and contractual benefits, with reassurance given in writing that the suspension is a neutral act.

Employers should take particular care when informing colleagues or external third parties about the absence of a suspended employee. A comment or statement could inadvertently indicate a presumption of guilt, which may later be used by an employee as evidence that the disciplinary procedure was pre-judged.

Even if there is no subsequent disciplinary action, suspension can damage the reputation of an employee. This can cause the employee’s position to become untenable as a result of colleagues or third parties knowing details of an investigation, and they could argue that the disclosure was a breach of trust and confidence by the employer. Employers should therefore avoid disclosing details of suspensions or ongoing investigations wherever possible.

Arwen Makin is a senior solicitor at ESP Law, provider of the HR Legal Service

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