“Should we suspend an employee for misconduct?”

Employers often consider suspension to be the correct response to an allegation of misconduct. However, it does not always need to be imposed. In fact, suspension shouldn’t happen unless it’s really necessary.

What does this mean in practice? Acting reasonably is key. Suspension is a significant move to make and, while it isn’t a punishment, it can have a serious effect on the suspended employee and on their relationships with colleagues and their employer. Suspension can change the dynamics in a workplace, even to the extent that an accused employee may feel there is no coming back from it. So, employers should proceed with caution.

How should an employer decide whether or not to suspend?

When there is suspicion or an accusation of misconduct, the nature of that misconduct and the circumstances around it are all-important. It’s vital that an employer looks into what is alleged to have happened and how serious it is, and who – employees, customers, clients - is involved.

Acas is very clear that an employer should only consider suspending an employee if it reasonably believes that is needed to protect:

• the investigation;
• the business;
• other staff; or
• the person under investigation

Removing the accused employee from the work situation can be vital where that person poses a safety risk, for example, or where there are fears that the employee could damage evidence.

Are there alternatives to suspension?

Depending on the situation, an employer could consider (for example):

• asking the employee to work from home for the time being
• moving the employee to a different part of the business (on the same or a different site)
• altering the employee’s shifts
• removing the part of the employee’s duties relating to the allegation

It’s wise to get legal advice, to ensure that a proposed change to duties would not breach the employee’s employment contract. And Acas advises that the employer and employee should discuss how the reason for the temporary change should be communicated to colleagues. Keeping things confidential, as far as possible, is best.

What if an employer suspends when they shouldn’t?

Suspension is a judgement call, and employers may not always get it right. An employee could resign and claim constructive dismissal if they feel the suspension was a breach of the implied term of mutual trust and confidence. It’s therefore vital to make sure the decision to suspend is justified and that it, and the handling of all the issues around it, is reasonable. Consistency is also important; if the employer treated two employees in similar situations differently, that could be the basis of a discrimination claim.

For specific advice about a workplace situation you’re dealing with, contact our employment law team on info@bsandi.co.uk or call now on 01264 353411.