Kept in Suspense

This month ACAS has published new advice on staff suspensions during an investigation at work.  This is not legally binding but will no doubt be relied on by an employee to show whether an employer has acted reasonably in connection with a decision to suspend. An employer suspends an employee from work when they tell them to temporarily stop working. Most often an employer will need to consider whether to suspend an employee when it is carrying out a disciplinary or grievance investigation related to them and this is the focus of the new ACAS guidance.  Please note suspension may also be appropriate if there are medical or health and safety concerns regarding the employee continuing to work, but this is not covered in the guidance.

The key piece of advice is that employers should carefully consider the circumstances before deciding whether to suspend the employee, as it will not always be necessary to take such drastic action. Taking such a step without justification could undermine the investigation, result in a grievance itself, or even potentially lead to a breakdown in trust and confidence between the employer and employee giving the individual grounds to resign and claim constructive dismissal. It is important to remember that suspension is not a disciplinary sanction but can of course be very stressful for employees. ACAS advises that before suspending employers should:

• consider the wellbeing and mental health of the employee;
• only suspend if there is no alternative; and
• plan the support they will provide to the suspended employee.

Suspension should only be considered if it is needed to protect:

• the investigation (e.g. if the employee might damage or delete evidence or influence witnesses);
• the business (where there’s a genuine risk to customers, property or other business interests);
• other members of staff; or
• the person under investigation.

An investigation by the police or a regulatory body into an employee does not necessitate suspension; but employers should take this into account if its relevant to their own investigation. Any decision to suspend should be made based on the evidence that the employer has gathered, and not on assumptions about what a separate police or regulatory investigation might have found.

Employers must also consider whether there is an appropriate alternative to the suspension. For example, employers should consider if their concerns could be alleviated by an alternative temporary arrangement such as:

• a change to their shifts;
• working in a different part of the organisation;
• working from home, a different office or a different site;
• stopping their access to a specific system or tool, or stopping them from doing just a specific part of their role; or
• working away from customers or avoiding particular customers (for example, where the investigation relates to a serious complaint by a specific customer).

The reason for any such temporary change should be kept confidential where possible in order to avoid any negative impact on that individual whilst the investigation is ongoing – if practicable the employer should discuss with the relevant employee as to what other members of staff will be told.

Ultimately, the employer must weigh up all the evidence available and the risks of not suspending the employee and also take into consideration the employee’s own wellbeing, as well as any viable alternatives to suspension before making a decision. Any decision to suspend must be reasonable and justifiable to mitigate the risk of the employee raising a grievance, resigning and/or bringing a claim. If the employer decides to suspend this must be kept under regular review to ensure the employee is not suspended for any longer than absolutely necessary. Similarly, if an employer decides not to suspend their employee, this does not bar them from changing their mind later in the investigation, if circumstances change or new evidence comes to light.

If a decision to suspend is made, the employer should explain the reason for the suspension to the employee and clarify that it does not mean that it has been determined that they are guilty of any wrongdoing. Pay and benefits should also be maintained, and efforts should be made to keep the suspension confidential where possible.

If you need any advice on suspending an employee, or dealing with a disciplinary or grievance investigation more generally, please contact [email protected]