6. Suspension?

The ACAS Code states: “In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.” Please note that suspension is not a neutral act and the employer will need to show reasonable grounds existed at the time. Inevitably, this involves a balancing of the employee’s and the company’s interests.

In instances of alleged serious or gross misconduct, the employer may wish to suspend the employee while the matter is being investigated. This is likely to be appropriate where there is a potential threat to the business or other employees; or where it is not going to be possible to fully investigate the allegation if the employee remains at work (e.g. because they may tamper with or destroy evidence or attempt to sway or intimidate witnesses).

Suspension can also be advisable where relationships between colleagues have clearly broken down. However, employers should not take any action which demonstrates pre-judging the situation or preferring one employee’s version of events over another’s without strong reason for doing so.

At this stage any suspension should be a paid leave of absence and it should always be for the minimum period necessary. The employee should be advised of the duration of their suspension as soon as possible after their absence commences and they should be updated should it be necessary to extend the suspension.

When the employee is advised of the need for suspension they should be advised (orally and in writing) not to come to work; not to carry out any work; not to contact colleagues (other than HR) or clients – as well as the intended duration of the suspension.

An employer is in a better position if they can rely on a contractual right to suspend. Contracts should be reviewed and revised if they do not include this right.

If an employer does not have reasonable grounds to suspend the employee, they will risk being in breach of the implied term of trust and confidence and bringing about a constructive wrongful and/or unfair dismissal. This is exactly why the employer should only suspend where necessary.

Employers must be consistent in their approach to suspensions across the business to avoid allegations of discrimination on the grounds of any protected characteristic.