We regularly hear of employers, in the marine sector or otherwise, suspending their employees when they hear about wrongdoing either from a customer or fellow a colleague. Suspension can be a natural knee-jerk reaction when the allegations include serious misconduct which could put the business, staff or clients at risk – but is suspending the employee really the right thing to do when nothing is proved?
Acas recently updated their guidance on suspending employees and it provides some salient reminders of the dos and don’ts for employers whilst focusing on the mental health and wellbeing of the suspended employee.
What is suspension?
Suspension is when an employer tells an employee to temporarily stop carrying out work. This could be whilst a disciplinary or grievance investigation takes place. Suspended employees should continue to be paid and receive benefits in the usual way.
How to suspend?
Suspension is not a disciplinary sanction in itself as it is meant to be a neutral act but recent case law has cast some doubt over whether that is really the case. A lot of employees feel like the mere act of suspension shows that their employer believes them to be guilty and it can have a significant impact on the person and their relationship with the business. Communication around the suspension is therefore key.
The Acas guidance advises employers to ensure that they have explained to the employee the reason for their suspension, that it is not disciplinary action, they will continue to be paid and the suspension will be as short as possible and remain under constant review. Acas also recommends employers stay in regular contact with the suspended employee and keep them up to date with the investigation. Potentially having separate welfare support meetings with them if resources allow.
Must the suspension be kept confidential?
The suspension is also meant to be confidential and employers should discuss with the employee who else in the workplace will be told about it. This is an important part of managing the employee’s eventual return to the workplace.
Is suspension the best course of action?
As an employer you need to ensure that suspension is the right course of action and there is no alternative. The new Acas guidance advices that employers should consider each situation carefully before making a decision and suspension should always be a last resort. Could that employee change shifts, work from home full time or have part of their job removed whilst the investigation takes place? All these things should be considered along with the mental health of the employee who is being suspended.
Employers should be able to explain clearly (and potentially document this in writing on your case files) why suspension is a reasonable step to take and what risk to staff, property, customers and clients that person is if they weren’t suspended.
What happens if you get this wrong?
The suspended employee could argue that their employer is in breach of contract as there is a breakdown in mutual trust and confidence between the parties. The employee could therefore resign in response and potentially bring a case for constructive dismissal. Generally an employee needs two years’ service to bring this type of claim but there are some circumstances where they can bring this claim with less than two years’ service.
Should I get legal advice?
If there is an allegation serious enough to suspend an employee, you may benefit from legal advice on how to handle the disciplinary or grievance investigation but in any event, please get in touch if you are considering suspending an employee to ensure you have conducted a thorough risk assessment before taking that action. If during the suspension you discover that the employee does have a case to answer, ensure that you follow a fair disciplinary process before taking any action to reduce the risk of claims from that employee. Instant dismissals are rarely safe and may result in expensive litigation. We are available and on hand to support you through this process, to reduce risks and to find the outcome that best suits you and your business.
If you have any further queries regarding employee suspension, please feel free to contact our Employment Team.