Employment law- Suspension
What is suspension at work?
Where you are suspended at work, this means you have been notified by your employer that you will not be allowed access to the workplace (or your colleagues), whilst a serious disciplinary matter is investigated against you.
Although a suspension is not formal disciplinary action in itself, it does often lead to disciplinary proceedings based on gross misconduct.
The right to suspend you by your employer is normally set out in your contract of employment or staff handbook. Usually, you will be suspended on full pay, unless your contract of employment provides otherwise. Even if there is no right to suspend in your contract, providing there is a sufficiently serious reason and you suffer no detriment (for example, you continue to receive full pay and other usual benefits) then most employers will be deemed to have acted reasonably.
There is no test required of whether it was necessary for you to be suspended or not, so you can’t argue that your employers could investigate without the need to suspend. The only test that a tribunal would take into account is whether there was a reasonable and proper cause to suspend you in the first place (e.g. where an investigation is being carried out).
Suspension should nevertheless be used with caution pending an investigation, even where the contract of employment gives an express power to suspend. Paradoxically, it may be that, the more serious the allegation, the more care should be taken before suspending someone. This is because it is more likely that the allegation together with a subsequent suspension would destroy trust and confidence if unfounded- whatever the outcome of the disciplinary. Where evidence is very flimsy, alternatives should be considered during the investigation such as a transfer or a short period of leave (assuming an employee cannot remain in situ) .
Why would your employer want to suspend you?
The reasons why your employer may want to suspend you could include:
- to highlight to you the seriousness of the matter and potential breakdown of trust;
- to immediately stop you carrying on the gross misconduct that is being alleged;
- to stop you interacting with other employees or clients/customers of your employer, which may otherwise cause a detrimental effect of the business;
- to enable your employer to properly investigate the potential disciplinary matter without any hindrance;
- in high profile cases, it may be important to remove you from the public eye as soon as possible.
How long should my suspension be for?
Your suspension should be for the shortest period of time whilst the investigation takes place, and you should be updated as to how long the suspension is likely to last. Indeed, the ACAS code of practice on disciplinary and grievance procedures states that suspension should be:
• as brief as possible;
• kept under review;
• not be used as a disciplinary sanction.
If your employer has suspended you without any reasonable grounds to do so, or takes an inordinate amount of time in carrying out an investigation (without explanation) making it untenable for you to go back to work, then you may have a case for constructive dismissal.
As mentioned above, your employer should review your suspension on a regular basis to determine whether or not it is still necessary, otherwise this can also amount to a breach of the implied term of trust and confidence, which again could grounds for a constructive dismissal claim.
Can I challenge the decision to suspend me?
Yes, you can argue that your suspension in unreasonable and try to seek immediate clarification why the decision has been made. Your employer may not be too forthcoming though if they are in the process of investigation. You could make a more formal challenge by lodging a grievance against your employer. Your employer should then consider and make a determination on whether or not the circumstances of the case justify your suspension from work. The lodging of a grievance, however, would rarely result in a lifting of the suspension in itself if there are reasonable grounds to suspend you in the first place. However it may fast track the whole process and give you an opportunity to get your points across quicker.
In certain cases, you may be able to apply to the civil courts for an injunction to prevent your suspension. It is rare to do this, and also potentially very expensive. You would mainly consider this action where the suspension is in breach of your employment contract, or where you are in a professional role, and your suspension casts an immediate doubt over your competence and reputation.
Can my employer inform work colleagues about my suspension?
Yes, they can, but your employer still owes you a duty of trust and confidence. As such, although announcements about your suspension are allowed in principle, your employer should take care before making any such announcements, and any suggestion of guilt should be avoided. This could otherwise make the disciplinary process most unfair.
Can I contact work colleagues during my suspension?
This depends on whether your employer has made such a request. Usually they do make this request. The reason for this is that there is a risk that you might try to influence colleagues who are involved in the investigation as witnesses, and they may also wish to preserve confidentiality in relation to the issues that are being investigated. If you flout this request (including contacting colleagues outside work time), this could lead to disciplinary action separate from the matters for which you have been suspended.
Your employer would be expected to take a reasonable approach, if you request contact with colleagues in connection with preparing your response to the allegations made against you.
Can I still go on holiday during a period of suspension?
You are entitled to request annual leave from your employer in the usual way, however this may reasonably be refused if your employer requires you to remain available to assist in the disciplinary investigation, attend investigation or disciplinary meetings, or deal with any work-related questions. It may also be that the suspension could be short lived and you would then be needed to return to work.
If you have already have a holiday booked at the time of your suspension, your employer can only cancel it only if you are given adequate notice. This should be as much notice as the amount of leave you have requested. For example, 2 weeks’ notice of the refusal must be given by your employer if the leave you requested was for a period of 2 weeks.
Can I be suspended by my employer on medical grounds?
You can be suspended by your employer on medical ground as your employer has a duty to take reasonable steps to ensure your your health and safety in the workplace. For example, you may be exposed to harmful radiation or become allergic to a chemical at work.
Your employer’s decision to dismiss you should firstly be based on a formal risk assessment.
If you are suspended on medical grounds, you are entitled to be paid up to 26 weeks of your normal week’s salary if you have been working with your employer for 1 month or more. However, if you are offered alternative suitable work which you then refuse, you would lose your right to be paid.
It is always advisable to take legal advice as soon as possible if you have been placed on suspension. This is especially as most cases of suspension do lead to subsequent disciplinary action, and can, in turn, put your job reference at serious risk. In many cases, we have been able to negotiate favourable severance terms with employers against a background of suspension, leading to a mutually agreed departure under a settlement agreement.