**Wrigleys’ Essential Employment Guide** The Disciplinary Process

To suspend or not to suspend?

In this series of articles, Wrigleys’ employment team explores the disciplinary process, offering guidance on key steps for employers.

In this article, we look at key considerations when suspending an employee as part of a disciplinary process.

Employers sometimes assume they have a right to suspend staff as they please, but the reality is more complicated

Employers may be faced with disciplinary situations where suspending an employee may seem like a sensible step whilst investigations are carried out, or sometimes for the duration of the disciplinary process. However, doing so has implications that can catch employers out and may lead to employees having claims against them.   

Suspension should not be an automatic part of any disciplinary process. It may not always be required, and alternatives to suspension should be considered first. We consider the main issues around suspension below.

1. Could suspension be a breach of contract?

In some cases, a decision to suspend could be a breach of the employment contract.

If an employer is considering suspension, the first thing they should check is whether there is a contractual right to suspend the employee. This may be set out in the contract itself, but it could be included in a contractual disciplinary policy.

If there is no contractual right to suspend, an employee could argue that there is an implied contractual right to work and that the suspension was in breach of this right. Particular care in this regard should be taken when dealing with senior managers and/ or employees who have performance-related bonuses where suspension may affect their ability to achieve targets, or where keeping someone out of work may result in a loss of public profile, skills or currency, or undermine their status within the workplace.

Whether or not there is a contractual right to suspend, the employer will need to have solid grounds to suspend the employee.

Even where there is an express contractual right to suspend an employee, the courts have found that this right is subject to an implied term that it be exercised on reasonable grounds.

Suspension has also been found in the courts to be conduct by an employer which is likely to destroy or damage the mutual trust and confidence between employer and employee. The key question will be whether the employer has reasonable and proper cause to suspend in the particular circumstances of the case.

See our article from March 2019 (available on our website), Teacher’s suspension was not in breach of contract, for more detail on how the courts approach this question.

We set out below some of the key factors in considering whether it is reasonable to suspend.

It is also important to note that employees who are suspended are usually entitled to their normal pay and benefits. Failure to pay the employee may be a breach of contract and/ or result in a claim for underpayment of wages.

2. Grounds for suspension during a disciplinary procedure

Whether or not there is a contractual right to do so, most disciplinary procedures do not require suspension. Suspension may also be avoided by considering alternatives (see below) so that the employee can continue working while an investigation progresses.

An employer should avoid rushing to a decision to suspend and in all circumstances have reasonable grounds for doing so.

However, there will be times when it is necessary to suspend. This is usually where there has been a serious allegation of misconduct and where one or more of the following apply:

• where there is a risk of an employee influencing witnesses/the disciplinary process or tampering with or destroying evidence
• there is a genuine risk to other employees, customers, service users, property, or other business interests if the employee were to stay in the workplace
• the employee is subject to criminal proceedings that inhibit their ability to perform their duties
• where there are medical grounds or other risk-based reasons to suspend

3. Consider alternatives to suspension

It is important to consider practical alternatives to suspension because of the potential effect it may have on the employee, including reputational damage and protecting them from unwanted ‘office gossip’. Alternatives to suspension may include:

• reassignment elsewhere within the organisation
• home working
• a change of duties
• a change of working hours
• working under supervision

4. Considering the wider context

Having considered all the above factors and decided suspension is appropriate, an employer should still stop to consider what the suspension means in the wider context. For example, they should take into account any precedents set with other employees in similar situations and consider whether any difference in treatment could be considered discriminatory (if the employee in question has a protected characteristic). They should also consider whether the suspension might be connected to whistleblowing or other legally protected acts.

5. Taking the decision to suspend

Ultimately, an employer needs to come to a conclusion by weighing up the factors for and against suspension and deciding on which side of the line to fall. This may be a very easy decision (for example, where an employee is accused of violent acts in the workplace) but in most cases there will be nuances. 

Keeping a written record of the reasons for the suspension and why alternatives were not feasible in the circumstances can provide useful evidence where grievances or claims are raised by suspended employees.

6. That is not the end of the matter!

Having made the decision to suspend, that is not the end of the matter. The suspension must be kept under review; to ensure it remains reasonable particularly should any underlying investigation becomes drawn out.

If you feel uncertain about whether to suspend an employee, it is always a good idea to seek legal advice before making a decision.