IF you follow the media (especially social media) it would seem we are mired in some form of scandal almost every day. Whatever the allegations may be, there will inevitably be calls for an individual to be suspended from work pending the outcome of an investigative process or disciplinary action (and the more heinous the allegations, the louder the noise).
In some cases, you do scratch your head and wonder why a suspension from work has not been employed, however unless you are directly involved in the case on the employer side, the nuance and detail of the matter can be lost. It’s often rarely simple. As such here are some suggestions for consideration:
Even before the situation arises, I would recommend that you check that your policies and procedures. They should clearly state that suspension is an option for the organisation in certain circumstances and give examples of what these may be. These could where the matter under investigation is considered a gross misconduct issue, where relationships have already broken down between parties, where there is a genuine belief that witnesses could be pressurised or evidence tampered with (or even destroyed), or perhaps where company property may be at risk of damage.
There is no definitive list which will cover every potential situation where suspension is appropriate so careful consideration should be given to what you are trying to achieve and whether this is a legitimate and necessary avenue to take.
It should be made clear in your policy and procedure that any suspension is not considered disciplinary action in and of itself and does not imply any malfeasance or potential outcome one way or the other. Interestingly, in recent years, some decisions made by the courts suggest suspension may not always be viewed as being neutral (instead being seen as potentially casting a shadow on the employee’s competence) so all the more reason to ensure the need for suspension is very carefully considered and your policies and procedures are clear and unambiguous.
Best practice would suggest that any suspension should be with full pay and for as short a period as possible. It is possible to suspend without pay if your terms and conditions specifically allow for this, however this would not be a recommended approach and seldom done (logic would also suggest that as suspension should not be seen as a punishment then why would you withhold pay, especially as you, the employer, are the one asking the employee not to present themselves for work)
So, fundamentals are important. Many tribunals are lost by an employer due to not following process or having a poorly drafted policy, rather than the actual rights and wrongs of what the employee did; so, it’s worth checking all you are all good in this area.
Assuming then you have your policies etc sorted and decided the matter is serious enough: how and when do you carry a suspension out?
In the first instance consider if it is absolutely necessary. Courts look unfavourably on what they consider ‘knee-jerk’ reactions by an employer. Consider if there have been any preliminary investigations completed that point to a suspension being necessary; ask yourself if the employee could be relocated or given different duties for a period rather than suspend?
Failure to genuinely consider alternative options may not sit well when defending any suspension in a tribunal (this is especially prescient given the current proclivity for companies to allow working from home as a general work / life balance option)?
Once the decision has been made (by a person authorised to make that call); inform the employee, explain the situation, and follow everything up in writing.
In the letter issued to the employee ensure that they are aware why they are being suspended, that this does not carry any disciplinary implications, will be for as short a period as possible and that (as in most cases) they will receive full pay. You should also outline their responsibilities when on suspension; e.g., if they should not contact anyone (specific people, clients, colleagues etc) other than those they may need to discuss relevant matters with such as their trade union rep or HR. They should also be advised if you expect them to be contactable and available for meetings as required, during normal working hours.
Once that has been done every effort should be made to ensure due process is not delayed. Suspensions are seen as a significant action, so an employer should try to ensure they are only last as long as absolutely necessary. With that in mind you should ensure a regular review of the suspension is put in place, as case law has indicated that a failure to review a suspension can lead to action taken against the employer.
So: to suspend or not to suspend? As I have hopefully illustrated, this is a complex area and each decision regarding whether to suspend an employee or not should turn on the merits of the particular situation and be guided by your company policy and procedure .
Given some of the more recent court decisions coming out, serious consideration should be given to whether the use of suspension should be employed. Certainly, it should be reserved only for serious matters and I would recommend anyone in that situation should take advice from someone with relevant expertise, whether that’s their own HR team a consultant or an employment lawyer, prior to making a decision as no two cases are identical.
:: Barry Shannon is head of HR at STATSports
