The recent case of a high-profile BBC figure being taken off-air and facing serious allegations has brought the issue of suspension to the forefront of journalistic, and public, attention. Here, Lucy Flynn looks at why an employee may be suspended, what suspensions looks like, and what happens after.

It has been fascinating to read the many and various views on suspension in the context of employment; why it is done and what it means.  Perhaps unsurprisingly, and although it is rarely expressly stated, the reporting of the decision to suspend is full of negative inference.

What is suspension?

Suspension is where an employee continues to be employed but is instructed not to do any work.  A suspended employee may also be instructed not to attend the workplace, contact colleagues or clients or access work IT systems.

During any period of suspension, the employee will usually retain all other employment rights and benefits, including the right to be paid.

Why might it be appropriate to suspend an employee?

There are several reasons why an employer might consider suspending an employee, namely:

• Where is it necessary to investigate a serious allegation of misconduct
• During pregnancy to protect the health and safety of the pregnant employee
• For medical reasons, usually because there are health and safety issues working with dangerous chemicals or radiation

In all cases it is important to remember that an employee should only be suspended if it is necessary and there will be many cases where suspension is simply not appropriate.

When dealing with allegations of serious misconduct, suspension is supposed to be a neutral act and suspension would generally only be appropriate where the investigation cannot be done properly if the employee remains at work, for example because:

• They may destroy evidence
• They may attempt to influence witnesses
• Relationships at work have broken down
• There is a potential threat to the business or other employees

In all cases, employers must be careful to not give the impression that suspension is a pre-judgment of any future disciplinary action and must avoid suspending in haste without considering the circumstances of the matter at hand.

Can any employee be suspended?

In short, yes.  However, it is essential to remember that employers could find themselves in difficulty under the employment contract and the laws governing fair dismissals and discrimination if an employee is suspended in circumstances where:

• There is no contractual right to suspend – i.e. a clause in the employment contract or disciplinary procedure permitting suspension to investigate allegations of misconduct
• There is a reasonable alternative to suspension, for example changes to shift patterns or place of work during the investigation
• The employer cannot show that there are reasonable grounds for the suspension
• The employer has not implemented its policy on suspension fairly or consistently, for example where there is more than one person involved in the allegation

How do you suspend an employee?

This in mind, employers should communicate the suspension, the reasons for it, the likely duration and any terms attached to the suspension clearly to the employee. Employers should also:

• Make it clear that the suspension is not a pre-judgment in any disciplinary outcome
• Keep the period of suspension as brief as possible
• Explain what is going to happen during the suspension and give a timeline where possible
• Be clear regarding confidentiality and appropriate communication during suspension
• Offer support to the suspended employee along with a point of contact at work

It is best practice to speak face to face with an employee who is being suspended, and if this is not possible, speak with them over the telephone or a video call.  There is no legal obligation to confirm the details of the suspension in writing, but it is very good practice to do so in order to avoid any confusion or mixed messages.

Although the matter under investigation may be highly confidential or sensitive in nature, employers should provide as much information to the suspended employee as they are able to do without prejudicing a fair investigation.

What happens during a suspension?

During any period of suspension, which should be kept as brief as possible:

• The employee remains employed and entitled to pay and benefits, other than the right to work and subject to any terms put in place during the suspension
• The employer should investigate the matter as promptly as possible, keeping the employee updated as appropriate
• The employer should agree how and what to communicate internally about the investigation and suspension
• The employer should keep in contact with the suspended employee, bearing in mind that the longer a suspension continues, the bigger the potential impact on the employee and the organisation

It may be appropriate to end a period of suspension if an employee falls ill and is unable to work.  If an employee is unable to perform their work due to illness, then it is normally unnecessary to continue with a period of suspension, but it may be appropriate to reinstate the suspension when the employee’s health improves.  Such cases need careful consideration depending on the facts of the matter.

What happens after a suspension?

Any period of suspension should be as brief as possible.  At the end of the investigation, the employer will need to decide whether there is need for further action or not.

If no further action is required, the suspension should be ended as soon as possible and the employer should meet with the employee to confirm this to make the arrangements for them to return to work.  Again, there is no legal requirement to do so but it is good practice to confirm in writing the outcome of the investigation and the end of the suspension.

If the investigation leads to a disciplinary procedure, the employer will need to decide whether to continue the suspension while the procedure is carried out.

If you have any questions or require any further advice on this topic, get in touch with our specialist teams today at hello@beyondcorporate.co.uk

[This blog is intended to give general information only and is not intended to apply to specific circumstances. The contents of this blog should not be regarded as legal advice and should not be relied upon as such. Readers are advised to seek specific legal advice.]