Disciplinary suspension: checklist

Sally Rogers of Osborne Clarke continues a series of articles on disciplinary suspension with a checklist for employers that are considering suspension pending a disciplinary investigation. Suspension from work should be used only in limited circumstances and periods of disciplinary suspension should be as brief as possible. 

1. Consider whether or not suspension is appropriate and necessary. 

An employer that has to deal with allegations of misconduct by an employee may wish to suspend him or her while it carries out its investigation into the allegations. However, employers should suspend only where they have reasonable grounds to do so in the circumstances. The Discipline and grievances at work: Acas guide (PDF format, 898K) (on the Acas website) gives examples of the types of situation when suspension might be necessary, including where:

• the employee poses a potential threat to the business or other employees;
• the allegation amounts to gross misconduct; or
• the employee's presence at work may make it difficult for the employer to investigate the allegation (for example where there is a risk that the employee may destroy evidence or attempt to influence witnesses).

Employers should suspend only where it is absolutely necessary to do so and as a last resort. The Court of Appeal in Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 CA made clear its view that suspension should not be a "knee-jerk" or "automatic" response to certain allegations and highlighted that it will be a breach of trust and confidence for an employer to use suspension in this way.

Employers should consider alternatives to suspension, for example temporarily moving the employee to a different location and/or duties with his or her agreement or prior contractual authority.

2. Check the employee's contract of employment and the disciplinary procedure to establish whether or not there are contractual terms relating to suspension.

Where an employer is considering suspending an employee, it should review his or her contract and its disciplinary procedure to identify whether or not it has the contractual right to suspend and, if it does, any terms relating to suspension.

Although the absence of an express contractual right to suspend will not prevent the employer from being able to suspend the employee, he or she should suffer no loss as a result. Care should be taken if suspension will deprive the employee of the opportunity to earn remuneration, for example where the employee's pay includes rates for piece work, shift work or commission. In these circumstances, suspension may give the employee grounds for a breach of contract claim if he or she suffers a loss as a result.

Contractual terms may also specify employees' rights during periods of suspension and the process that the employer will follow when imposing a period of suspension. Failure to follow contractual conditions relating to suspension could render the employer vulnerable to breach of contract and constructive dismissal claims.

3. Establish if there is a time limit on periods of suspension.

The disciplinary procedure and/or the employee's contract of employment may specify that periods of suspension will be time limited. Where an employer imposes a period of suspension that exceeds a contractual time limit, it will be in breach of contract.

The Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website), with which employers should comply when dealing with disciplinary situations, states that periods of suspension "should be as brief as possible". The need for continued suspension should be kept under review. Unnecessary or prolonged delays in the disciplinary process may make a suspension unreasonable. However, in the event of unavoidable delays, the employer should keep the employee informed of the reasons for those delays.

4. Clarify to what pay and benefits the employee will be entitled during suspension.

Suspension should be on full pay and contractual benefits unless there is a clear contractual provision permitting the employer to suspend without pay and benefits. Employers must exercise any contractual authority to withhold pay and benefits reasonably.

Where an employee has a contractual entitlement to benefits such as a company car, mobile telephone and/or laptop for personal use, a requirement to return this property may amount to a breach of the employee's contract of employment. The employee may also argue that, by requiring him or her to return property of this kind, the employer has prejudged the outcome of the investigation and disciplinary process. The employee may be able to use this factor to strengthen a subsequent claim for unfair dismissal.

5. Communicate the suspension to the employee.

Employers should communicate the terms of a suspension in writing, to the employee concerned. The communication should make clear:

• that suspension is not a form of disciplinary action;
• the terms and conditions that apply to the employee during the period of suspension;
• the employee's point of contact within the employer's organisation; and
• where necessary, that the employee should not contact other employees (other than his or her representative) or the employer's clients and customers.

The employer should keep in regular contact with the employee during the suspension to explain the progress of the investigation and any delays. It may also be prudent for it to remind the employee that he or she continues to be bound by the express and implied terms of the contract of employment and should observe the duty of confidentiality, act in the employer's best interests and remain available for meetings with the employer on reasonable notice.

6. Consider the practical aspects of suspension.

There are a number of practical issues that an employer suspending an employee will need to consider. For example, it may need to:

• decide whether or not to suspend the employee's access to the computer network and email system;
• obtain passwords, codes or keys from the employee; and
• arrange for work to be handed over.

Employers should think carefully before suspending an employee's access to their computer network or email system. The employee may be able to argue that the employer has prejudged the outcome of the investigation and disciplinary process. Therefore, employers should have good grounds for believing that an employee could pose a threat to the business if he or she had access to their systems before suspending this access.

7. Where possible, agree with the employee how the suspension will be communicated.

Ideally, the employer should agree with the suspended employee how news of his or her absence will be communicated to colleagues. It will usually be advisable to take a neutral line, for example by indicating that the employee's absence is due to family reasons. In any event, the employer should take care to ensure that any statement it makes does not prejudice the outcome of the investigation.

8. Do not delay the disciplinary process.

It is a general requirement of the Acas code of practice that disciplinary issues are dealt with promptly and meetings and decisions should not be unreasonably delayed. This is particularly the case where an employee is suspended from work. As mentioned above, the code makes it clear that periods of suspension "should be as brief as possible". Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 CA supports this further, given the potential for psychological damage as a result of being suspended, cited by the Court of Appeal.

9. Keep the suspension under review.

Where an employee has been suspended, the employer should keep the suspension under review. New evidence may come to light that demonstrates that suspension is no longer necessary. Where the employer makes a decision to proceed to a full disciplinary hearing, it should also consider whether or not the employee needs to remain on suspension in the meantime. If the disciplinary process is dropped or concluded with the result that the employee's contract is not terminated, the suspension should be lifted immediately.

10. Communicate the lifting of the suspension to the employee as quickly as possible.

As soon as the period of suspension is lifted, the employer should write to the employee to lift the suspension and invite him or her back to work. It should make clear that the suspension will not, it itself, prejudice the employee's future employment.

The next article in this series will be a case study around disciplinary suspension and will be published on 23 April.

Sally Rogers (sally.rogers@osborneclarke.com) is an associate in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.