When and how should you suspend an employee?
The decision of whether or not to suspend an employee suspected of misconduct can be a difficult one for many employers. If an employer suspects an employee of serious misconduct, suspension may be an appropriate step to take but only in circumstances where the employee’s presence at work would either (a) jeopardise the fairness of the ensuing investigation or (b) where their presence could pose a potential threat to the business or other employees.
The decision to suspend should never be taken without proper thought. If you decide to suspend an employee when it is not reasonable to do so or for longer than a period which is reasonably necessary, it could be considered a breach of the implied term of mutual trust and confidence and lead to the risk of constructive dismissal claim being brought by a disgruntled employee.
Suspension should never be a ‘knee-jerk’ reaction and whether it is reasonable and appropriate in the circumstances will depend on the individual facts of the case. However, you should consider the following:
1. What were the allegations and how serious are they? Noting that other factors also need to be considered before deciding on whether to suspend.
2. What are the risks if the employee was to remain in work? For example, if they are suspected of theft, could this cause a further potential loss to the business if they remained in the workplace whilst investigations are ongoing.
3. What is the risk to the investigation if the employee was to remain in their role, in the same building? Would they be in a position where they could influence witnesses; remove evidence and effectively hinder ongoing investigations?
4. How have you as an employer treated others in the past committing the same and/or similar offence? Would there be a discrimination risk? Consistency is key.
5. Consider whether there are any alternatives to suspension. For example, does their employment contract permit them to be relocated to another office or role? Most of all, it is important for employers to have conducted some preliminary investigations to establish a ‘prima facie’ case of the alleged misconduct before a decision is taken on whether or not to suspend.
In the recent case of Agoreyo v London Borough of Lambeth, the High Court was critical of a ‘knee-jerk’ suspension. In this particular case, Ms Agoreyo was a school teacher, responsible for a class of five and six year olds. She was alleged to have used excessive force whilst attempting to control two children. Her employer suspended her, pending a disciplinary investigation. The High Court stressed that suspension is not a neutral act, but “inevitably casts a shadow over the employee’s competence”. It was critical of the employer’s failure to explore alternatives to suspension, and its failure to consider Ms Agoreyo and another witness’s versions of events before suspending.
If you would like to talk through a situation you are dealing with, or if you need any advice on suspension, please do not hesitate to Call Us on 0800 042 0700, or email us on firstname.lastname@example.orgFind out more about our Employment department