Where one or more employees have done something which could potentially amount to gross misconduct, it is common for employers to want to suspend them. However, it is important that before you take that decision, you obtain some initial information from the individuals in order to ensure that you are acting reasonably. The recent Court of Appeal case of London Borough of Lambeth v Agoreyo considered this and set out some points for consideration.
One of the fundamental questions is why are you suspending the employee? You will be required to show that it was necessary, for example, to protect the business, or to carry out an investigation that may be compromised if they remain in the business. Suspension is not a neutral act and employees often think of it as disciplinary action. It is therefore important to tell the employee that suspension is only a precaution that is being taken whilst matters are investigated although it may lead to a disciplinary hearing. The key to suspending an employee fairly is making sure that you think about it carefully so that it is not a kneejerk reaction. Suspending an employee without a properly considered reason could breach the implied term of mutual trust and confidence and lead to the employee resigning and claiming constructive dismissal.
In order to reduce the risk of this, you should consider whether there are any alternatives to suspension such as moving the employee to a different part of the business or changing their duties temporarily whilst the matter is investigated. If you do decide to suspend the employee then you need to inform them in writing including:
- why you consider suspension necessary;
- who has made the decision;
- that their contract of employment will continue during the suspension;
- any rights or obligations that they have during the suspension period; and
- who to contact in the company with any questions.
Whilst an employee is suspended, it is important to act quickly so that they are not suspended for an unreasonably long period of time. You should review the decision to suspend them and update the employee regularly as to how long you expect them to be suspended for and what the next steps in the process are.
Once you have thought through this thought process, if you think it is reasonable and justified then you should be able to suspend the employee with relatively low risk. As with many scenarios, it is advisable to carefully document your thought process and the steps taken in coming to the decision in case you need to rely on it at a later date.
Please note this article should only be considered as guidance and should not be taken as specific legal advice. For further advice on this topic contact Kelly Gibson at Kelly.Gibson@tayloremmet.co.uk or 0114 218 4307.