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Employee misconduct and suspension

If you are considering suspending an employee suspected of serious misconduct, there are a number of factors you must first consider. Lodders’ solicitor advocate and employment law expert, Jennifer Linford, discusses best practice and the complexities surrounding suspension.

The ability to suspend an employee can be an extremely valuable tool for an employer. A period of suspension may enable the employer to gain some control, press pause and allow ‘the dust to settle’ to enable a fair and proper investigation to be carried out.

When an employee is suspected of misconduct, it may be necessary and appropriate for an employer to suspend them. However, in order to ascertain whether the suspension is necessary and appropriate an employer should first consider a number of factors:

  • Is it possible to carry out a full and proper investigation whilst the employee remains at work?
  • Is there a potential threat to the business and/or other employees?
  • Has the employment relationship suffered a material breakdown?

It is also important to remind ourselves of the three key principles (as stipulated in Paragraphs 8 of the ACAS Code of practice on disciplinary and grievance procedures) which underpin the fairness and reasonableness of suspension:

  • the duration of a period of suspension should be as brief as possible;
  • the appropriateness of the suspension should be kept under review; and
  • it is should be communicated to the employee that their suspension does not amount to disciplinary action.

The reasonableness of suspension

Although a valuable response, suspension should not be an automatic reaction and it should not be used as a form of discipline or sanction. The importance of refraining from this type of ‘knee-jerk’ reaction was emphasised by the Court of Appeal in the case of The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo [2019] EWCA Civ 322.

The Court of Appeal reminded us, in this case, that the reasonableness, or otherwise, of an employer’s decision to suspend should be assessed on a case by case basis and the question as to whether the suspension was likely to breach the implied term of trust and confidence, asked.

As an employer, it is important to take time to consider whether the following options would be a more suitable alternative to suspending your employee:

  • allowing the employee to work from home;
  • changing their working hours;
  • restricting their duties and/or placing them under supervision; and/or
  • being moved to a different location within their place of work.

The choice to suspend an employee should be a last resort and is only reasonable and necessary if no other option is suitable.

However, if the decision to suspend has been reached, you should provide your employee with a suspension letter. It is imperative that the letter addresses the following:

  • an explanation as to why they are being suspended;
  • an estimate as to how long the period of suspension will last;
  • who their point of contact is during the suspension; and
  • a reminder that the suspension is not an assumption of guilt but rather to ensure that a fair and proper investigation is carried out.

Pay during suspension

The Court of Appeal, in the case of North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, reinforced the principle that the suspension of an employee should be on full pay. In this case, the Trust suspended Mr Gregg, withholding his pay. The Court of Appeal stated that, where the contract does not expressly permit the deduction of pay, the default position must be that the individual is entitled to their full pay, with no deductions being made.

As an employer, you should be cautious before deciding to invoke any contractual right to suspend without pay, as to do so could result in the suspension being viewed as a punishment and, perhaps, add weight to an employee’s allegation that their disciplinary was unfair and, perhaps, predetermined.

Whilst this article focuses on suspension on grounds of misconduct, it is prudent to note that suspension is not limited to such situations; an employer may also suspend an employee on medical grounds and in circumstances where there is a workplace risk to an employee who is a new or expectant mother.

There is a lot to take into consideration when it comes to the potential suspension of an employee, and it is advisable to seek legal advice to assist in the decision making process. Lodders’ Employment Law team has extensive experience advising on such matters and is able to provide the support and advice needed to make decisions relating to disciplinary matters.

Should you have any questions, or require any assistance, please do not hesitate to contact either Nick Rowe on 01242 229096, or via email, or Jennifer Linford on 01242 229093 or via email.

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Get in touch

Should you have any questions, or require any assistance, please do not hesitate to contact either Nick Rowe on 01242 229096, or via email, or Jennifer Linford on 01242 229093 or via email.