Disciplinary situations can be very stressful. The employer has potentially suffered serious breaches of policy whilst the employee is facing potential disciplinary sanctions and perhaps even dismissal. Quite rightly, the employer's main focus is on what has actually happened and how this impacts the business. However, it is important not to lose sight of the initial procedural steps that must be taken to protect the employer from a potential Tribunal claim.
One of the first questions employers often ask themselves is whether to suspend. In theory, removing an employee from the businesswith immediate effect can be attractive, but this should not be an automatic response. When contemplating suspension, an employer should consider:
1. Why suspend?
- Unless the matter is clear cut, for example, the employee was seen punching a colleague, it is advisable to first conduct a preliminary investigation to establish if there is a potential case for the employee to answer.
- Suspension may be appropriate where the employee's presence may:
- pose a threat to the business or its employees;
- hamper the investigation, for example, the destruction of evidence or interference with witnesses; or
- not be conducive to the working environment.
- Employers should also consider alternatives to suspension such as placing the employee in a different area of the business, or giving them revised duties whilst any investigation is carried out.
2. Do you need a contractual right?
- In short, no.
- However, by having an express right either in the employment contract or disciplinary policy, it will help avoid any arguments that the employer is acting in breach of contract.
3. With or without pay?
- Unless there is a clear contractual right to do so, an employer will not be entitled to suspend without pay or benefits. To do so could be seen as imposing a disciplinary sanction before the allegations are heard.
- It may be possible to suspend without pay provided that right is expressly contained in the employment contract but these situations still carry great risk.
4. How should you communicate the suspension?
- Decisions can be communicated orally in the first instance. However, it is strongly recommended that the decision is then followed up in writing.
- The letter should make it clear that the employee is suspended
and deal with the following points:
- any relevant contractual clauses relied upon;
- anticipated length of the suspension;
- pay and benefits;
- attendance at work or the right to contact colleagues;
- who they should contact if they have questions; and
- that suspension is no indication that the employee will be issued with a disciplinary sanction.
5. How long should the suspension last?
- There is no statutory limit.
- However, suspensions should be kept as short as possible
because:
- prolonged suspension makes it difficult to re-integrate employees back into the workforce and may strengthen an employee's claim that the employer has fundamentally breached the employment contract; and
- it will cost the employer money to keep someone at home doing nothing.
6. Handling an employee's absence during suspension
- If possible, the actual suspension should be kept confidential.
- Consider how you will explain the employee's absence to colleagues and clients. What message will you put on the employee's out of office response?
- How will work be covered / distributed to avoid disruption to the business?
- If the employee is signed off sick whilst suspended, consider switching them from suspension to sick leave.
Handled correctly, the power of suspension is an extremely useful tool for employers. Therefore you should ensure that you have up to date employment contracts and policies which protect your business and that all managers understand what to do in a disciplinary situation. If you need assistance with documentation and training, we would be happy to help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
