Employment law- Suspension
What is suspension at work?
Where you are suspended at work, this means you have received notice from 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 will usually be 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.
Why would an employer specifically want to suspend an employee?
The reasons for an employer in suspending an employee are numerous. This includes:
- to highlight to the employee the seriousness of the matter and potential breakdown of trust;
- to immediately stop the employee carrying on the gross misconduct that is being alleged;
- to stop the employee interacting with other employees or clients/customers of the employer, which may otherwise cause a detrimental effect of the business;
- to enable an employer to properly investigate the potential disciplinary matter without any hindrance;
- in high profile cases, it is important to remove the employee 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 make a 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 employee’s suspension from work. The lodging of a grievance would rarely get you where you want to be if there are reasonable grounds to suspend you in the first place. The threshold for employers in showing this is not very high.
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.
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.