What is suspension?
Suspension is when a staff member is sent home or instructed to stay home from work, usually while receiving full pay. Employers are entitled to suspend a staff member:
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pending an investigation of gross misconduct or another serious disciplinary matter (the suspension is not a disciplinary action in itself, but disciplinary proceedings may follow)
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due to medical reasons, to ensure the staff member’s health and safety, or
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during pregnancy, to ensure the staff member’s health and safety
The right to suspend will usually be set out in an employee’s Contract of employment or the employer’s Staff handbook (if they have one).
Why might a staff member be suspended?
There are a variety of reasons why the decision may be made to suspend a staff member. For example, to:
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highlight the seriousness of a disciplinary matter
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stop the staff member from carrying on the gross misconduct that is being alleged
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stop the staff member from interacting with other staff members or clients/customers of the employer, where such may have a detrimental effect on the business
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enable the employer to properly investigate a disciplinary matter without hindrance from the staff member
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ensure the staff member’s health and safety (eg during pregnancy or a suspension for medical reasons)
It’s important for employers to carefully consider a given situation and to make sure they only suspend somebody when doing so is a reasonable way of dealing with the situation.
How should employers deal with suspension pending an investigation?
Employers should tread carefully when taking the decision to suspend a staff member. This is especially true if the staff member is a professional person (eg a teacher). The main thing to remember is that suspension should not be adopted as the default position or a ‘knee-jerk’ reaction to a potential disciplinary matter.
To compliantly and appropriately suspend someone, an employer should:
Let the employee respond
An allegation of wrongdoing should be put to the staff member before the employer makes the decision to suspend them, so that they can respond. Not allowing a staff member to respond to an allegation of wrongdoing could amount to a breach of trust and confidence, giving grounds for a constructive dismissal claim.
Consider alternatives
An employer should always consider alternatives to suspension. Such alternatives may include:
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transferring the staff member to another department
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having them work from home
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changing their working hours
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having them work under supervision
When making such changes, care must be taken to ensure that the changes are only temporary and cannot be considered a demotion or otherwise humiliating to the staff member. This helps prevent the staff member from arguing that their implied duty of trust and confidence was breached.
Keep it short
If the employer makes the decision to suspend a staff member, the suspension should be for as short a time as possible.
Record and review
Employers should document the decision to suspend so they can refer back to it at any point in the future. They can do this by sending the staff member a Suspension letter.
Suspension should also be kept under frequent review. The suspension should not last for longer than necessary.
All personal information collected during a suspension procedure must be processed in accordance with the employer’s Data protection policy and Employee privacy notice.
What happens during a suspension for the purposes of facilitating an investigation?
Can the staff member take annual leave?
A staff member can take holiday during a period of suspension. However, the purpose of suspension is to allow a reasonable investigation to take place (during which it may be expected that the employee will attend a disciplinary hearing). Therefore, it is not recommended that a staff member take annual leave throughout the entirety of their suspension.
Employers can always cancel pre-booked annual leave if it coincides with a disciplinary investigation; as long as they give the requisite notice.
Communicating with staff during suspension
When communicating during a suspended staff member’s absence from the workplace, an employer should be careful not to make any suggestion of the staff member’s guilt (as the employer still owes the employee a duty of trust and confidence). The manner of communication with staff should be agreed upon with the staff member themselves.
Communicating with staff upon return to the workplace
In the event that the allegations against the staff member are unfounded and they return to the workplace, the employer may want to announce this to the entire workforce. The employer should also make sure that the returning staff member is up to date with their workload and any training they may have missed out on during their suspension.
Suspension on medical grounds
Medical suspensions involve staff members being suspended from work due to risks posed to their health and safety for a medical reason.
Under the law, employers must suspend staff members if there are health and safety issues related to working with dangerous chemicals, lead, or radiation. In certain circumstances, a healthcare professional may also recommend that a staff member is unfit to work.
The employer should consider adjusting the staff member’s working conditions or offering suitable alternative work. This alternative work must be on terms that are no less favourable than the staff member’s original role (eg the pay rate must be the same). If this is not practical, the employer may have to suspend the staff member until it is safe for them to return to work.
Suspension due to a risk to a new or expectant mother
Employers always have to assess the health and safety risks of their workplace. This is particularly important regarding any staff members who are new or expectant mothers.
Employers must also carry out a special individual risk assessment after being informed in writing that a staff member is pregnant, has given birth within the last 6 months, or is currently breastfeeding. This risk assessment should consider specific risks posed to the staff member that may make it unsuitable for them to continue working. Common risks include:
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the role requiring heavy lifting or carrying
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long working hours
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exposure to toxic substances
The employer should remove the risks or, if this cannot be done, look into alternative options (eg reducing the staff member’s working hours, allowing them to work from home, or providing alternative work). As with medical suspensions, any alternative work must be on terms that are no less favourable than those of the staff member’s original role.
Suspension should be the last resort and should only be applied if the relevant risk cannot be removed or the staff member is not otherwise protected. The staff member’s suspension should last until the earlier of:
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the staff member’s maternity leave starting, or
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it being safe for the staff member to return to work
If the staff member is suspended, the employer must also inform them about the outcome of the risk assessment and why the risk could not be removed.
Pay during suspension
During a period of suspension, staff members should receive their full pay and benefits.
A staff member suspended due to a serious allegation of misconduct must receive their full pay unless they are not willing or able to attend work (for example because they are ill) or there is a clear contractual right for an employer to suspend without pay or benefits (this will be outlined in the employment contract). Employers should rarely consider suspension without pay, as this is more likely to be seen as a punishment procedure that could lead to accusations of an unfair disciplinary procedure.
A staff member suspended from work on medical grounds must receive their full pay unless they:
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have been employed for less than one month
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are not willing to attend work (eg because they are ill)
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have been suspended for more than 26 weeks
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have unreasonably refused suitable alternative work
A staff member suspended on maternity grounds must receive their full pay unless they are not willing or not able to attend work (eg because they are ill) or have unreasonably refused suitable alternative work.
Sick pay during suspension
If a suspended staff member is ill and is not able to attend work again when required, they should receive their usual sick pay. Just like any other staff member, if the sickness lasts more than 7 days they must provide the employer with a fit note. For more information, read Sick pay.
Suspension in summary
Employers should remember that suspension is not a 'neutral act' and should be used with caution. Remember:
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to always check a staff member’s contract to see whether there are any terms dealing with suspension. If there are, make sure these are complied with
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to check any statutory guidance that may impact the decision to suspend the staff member (ie some local authority guidance states that suspension should not be the default option)
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to consider and, where appropriate, follow the Acas Code of Practice on disciplinary and grievance procedures
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to always exhaust all other options first (eg the staff member working from home)
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that suspensions should not be used as disciplinary sanctions
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that suspension should be for as short a period as possible and kept under review
Ask a lawyer if you have any questions about workplace suspension.
