Suspension may arise in two contexts. First, suspension can be used as a disciplinary penalty in itself. Such cases are rare but if a power does exist employers must comply strictly with the terms of the right to suspend given in the employee’s contract. Otherwise, the employer is likely to face a claim for breach of contract or an injunction to restrain breach.
Second, and much more common, is the procedure to suspend an employee on full pay for the purpose of investigating allegations of misconduct.
It is not always appropriate for an employer to use a right to suspend, but if it is, it must be exercised reasonably in accordance with the duty of mutual trust and confidence which exists between an employer and employee. Failure to do so could lead to a claim for constructive dismissal.
The following is a check list for employers considering suspending an employee:
Contract of Employment
- Check that the employment contract or accompanying documents (for example, a disciplinary procedure) contain a right to suspend. If there is no express right to suspend it may still be possible to do so providing the employee does not have an implied right to work. An implied right to work usually exists where the employee has to attend work in order to earn his income e.g. commission-based employment.
Act Reasonably
- The right to suspend should be operated reasonably so the employer should consider such matters as the length of suspension, how to explain the absence to others inside and outside the organisation, treating any other employees who are simultaneously suspended consistently, and considering whether suspension is the best option or if there is any alternative available such as moving the employee to another area of the business.
Pay
- Employees should receive pay and contractual benefits throughout the period of suspension unless there is a contractual right to suspend without pay.
Record Keeping
- A member of the management team should be chosen to implement the suspension and he/she should keep a proper record of the decision-making process in case this is subsequently challenged by the employee.
Practical Considerations
- The employer needs to consider who will cover the employee’s duties while he/she is suspended.
Once the decision to suspend has been made, the employer should inform the employee of the decision, and the reason for it, and make it clear that suspension is not a disciplinary action (save in the very rare circumstances identified at the beginning of this article).
Suspension can be a useful tool to investigate possible misconduct by an employee, but it should be used reasonably and not as a knee jerk reaction because total exclusion from work will frequently make employees feel belittled and demoralised. This can be to the detriment of the organisation as a whole.
If you would like any further information about the matters raised in this article or more generally relating to employment matters please contact Glyn Evans on 01934 637911 or by email evans@powellslaw.com
