When to suspend?
Suspension is a method that employers use in a particular set of circumstances. It is not and should never be the first port of call when employers are faced with a difficult situation.
Suspension is when an employee continues to be employed but is not required to attend work or to actually do any work. There are three instances in which suspension could be applicable. These include;
- A disciplinary process involving an allegation of serious misconduct;
- Medical grounds for suspension; or
- A workplace risk to an employee who is a new or expectant mother.
For the purposes of this article we are going to look at a case study involving alleged serious misconduct.
Imagine the situation below….
Dan and Simon are IT Technicians working in a multinational blue chip business. They have had an argument which has ended just shy of a physical altercation. Both are known to be hot tempered by their colleagues, but neither have any formal warnings on file. They are well liked generally across the business. They both work on small projects with different teams throughout the business.
Following the disagreement which involved raised voices and some swearing, both were suspended without pay while an investigation was conducted. Dan has looked at his contract and seen a clause which states;
“The Company reserves the right to suspend you in order to carry out a fair and impartial investigation into any alleged serious misconduct as outlined in our disciplinary and grievance policy”
The investigation has taken two months to complete and Dan is considering talking to a solicitor about the incident. He has since seen Simon outside of work and they have sorted their issue and apologised to each other for the argument they had. Dan told the HR manager Sally this in an email but did not hear back from her. He is still suspended and is still not receiving any pay.
How should Dan proceed?
Well there are several issues here. Firstly, we should look at whether the suspension was justified. ACAS guidelines say that suspension should be used in the following situations;
- Working relationships have severely broken down
- The employee could tamper with evidence, influence witnesses and/or sway the investigation into the allegation
- There is a risk to other employees, property or customers
- The employee is the subject of criminal proceedings which may affect whether they can do their job.
It could be argued that there was a risk to other employees. The fact that that tempers had flared to the extent they did more than likely means that Dan and Simon’s actions fall into either serious or gross misconduct in most companies policies.
So as a significant risk was posed by both Dan and Simon to each other and to other staff this may cause a tribunal to consider the suspension justified .
However, ACAS goes on to say that in instances such as this an employer should consider making adjustments to the employees terms to avoid suspending. In a business this size could any of the following have been implemented to avoid suspension?
- Being moved to a different area of the workplace
- Working from home
- Changing their working hours
- Being placed on restricted duties
- Working under supervision
- Transferring them to a different role within the organisation (the role should of a similar status to their normal role, but the same terms and conditions of employment).
It would have been much more appropriate to find some alternative provision for Dan and Simon whilst remaining in the business to avoid suspension. It would be a very easy and practical solution to separate the two and have them work with other teams, or even just to move one of them to another part of the business whilst the investigation took place.
It might also have been possible to have one of them work remotely given that their responsibilities are in IT. If neither of them suffered any direct detriment like a reduction in salary as a result of the adjustment, this would be considered to be more appropriate that suspending them.
The point about pay is an interesting one because although the company has left a clause in the employment contract discussion suspension, there is no mention of employees being suspended without pay.
In this instance as there is no contractual right to suspend without pay and therefore the period of suspension should have been on full pay. ACAS is very clear on this, the purpose of suspending is to allow the correct investigation process to take place without any assumption of guilt or wrongdoing. With this is mind the suspension should only last the length of time it takes to conduct the investigation. In this case two months would not be appropriate.
Employment tribunals are wary of suspension particularly as a disciplinary tactic because some employees have argued that it breaches the implied term in all contracts of trust and confidence. For this reasons courts will take a dim view of suspension if used incorrectly.
What do you think about the way HR have handled this incident? Are you currently facing similar issues and would like someone to help talk you through how to manage suspension and disciplinary issues?
If so get in touch at firstname.lastname@example.org