Suspension – the do’s and don’ts

Often, when an employee is suspected of misconduct, one of the first thoughts that cross the manager’s mind is “can we suspend him/her”?

The answer will, like most things legal, all depend on the circumstances.

First, do you have a contractual right to suspend? If the employment agreement refers expressly to the right to suspend the employee during any disciplinary investigation, the employer has greater freedom to suspend the employee. However, the right must be used in good faith and must not be for longer than is strictly necessary. Sometimes employees are suspended for months – that would almost certainly amount to a disadvantage in employment, except where the employee had sound reasons.

Can you suspend someone even without the express contractual right to do so? Yes, so long as there is a clear and justifiable rationale for the suspension and the employee does not have a right to work, either expressly or impliedly. (Which would be unusual – some performers, for example, have the right to work, so as not to lose their public profile and their skills atrophy).

Good reasons to suspend someone include where there is a genuine fear that the employee may interfere with witnesses; where there is an allegation of sexual or other harassment, and you wish to keep the alleged harasser and the alleged victim apart; where the allegation is one of theft or other dishonesty and the employer wants to protect their assets; where there is a risk of violence; and where there are material health and safety risks. More trivial reasons may not be seen as sufficient justification.

Should the suspension be paid or unpaid? If the employment agreement does not give the right to suspend someone without pay, you cannot do it. However, even if there is a right to suspend on pay, the employer must be very careful to ensure that the criteria for suspension have been correctly met, and that suspension without pay is not for any longer than is strictly necessary.

Even if suspension is on pay, overly long suspensions can amount to an unjustifiable disadvantage.

Finally, it is worth bearing in mind that, even though suspension is not a disciplinary sanction, and should not be treated as such, it can be seen by staff as indicative of guilt. It is not something to do lightly therefore.