Suspension with pay during disciplinary

Can you suspend an employee with full pay while an investigation into allegations of misconduct is underway?

The answer is yes, but only in certain cases.

The decision to suspend should never be taken without proper thought. If you do suspend an employee when it is not reasonable to do so or for longer than necessary, it could be considered a breach of the implied term of mutual trust and confidence and lead to the risk of constructive dismissal.

What does suspension mean?

Suspension means the employee does not come into work and does not perform their normal duties. The purpose is to enable an unhindered investigation to take place or to protect the interests of the employer and their employees.

While they are suspended, they should be available and contactable during working hours. You may tell the suspended employee that they are not to contact their colleagues and clients or service users unless for the purposes of preparing for a disciplinary hearing.

When can you suspend an employee?

You should not suspend every employee who is facing allegations of misconduct.

It should be reserved for cases of gross misconduct or very serious disciplinary issues where the employer believes that their continued presence at work poses a risk to the business, other employees or clients; there is a risk that the employee could hinder the investigation (for example, they could tamper with evidence or intimidate witnesses) or relationships have broken down.

When deciding whether you should go ahead with suspending an employee, you need to consider:

  • The nature and severity of the allegations of misconduct
  • Whether it is necessary and you have reasonable grounds to do it
  • How long the investigation will last.

You should always consider other alternatives first. Perhaps you can move them to work with another team or they can work from home while the investigation is underway. It is important to note that you should not put them in a role that could be considered humiliating or a demotion.

On a practical level, you need to consider the impact of the absence on your business. In smaller businesses, it may be a huge financial burden to pay for the employee while they are off and pay for cover if none of your other employees have capacity or the ability to do the suspended employee’s job.

Is suspension a form of disciplinary action?

It should be made clear to the employee this is not a disciplinary sanction and should not be interpreted as a finding of guilt or as prejudgment of the outcome of the matter on the part of the company.

How long can you spend them for?

It should be as short as possible and be kept under review.

How should you go about suspending an employee?

You should hold a meeting with the employee, explain the reasons for the suspension, the nature of the allegations of misconduct that need to be investigated, the likely duration, what they can and can’t do while suspended, what the next steps are and what the potential outcomes of the investigation could be. You should reiterate that the suspension is not disciplinary action and should not be interpreted as meaning that the outcome of the disciplinary procedure is predetermined. All of this should be confirmed in writing.

Remember that the employee has no statutory right to be accompanied to a suspension meeting.

When could an employee raise claims of discrimination?

If you suspend an employee with a protective characteristic, such as age, race or sex but not others in similar circumstances, they may be able to argue that that they have been discriminated against.

How do we announce their absence to the rest of the team?

When announcing it to others, you need to take care to not make it sound that they are being disciplined or are guilty of misconduct. Often managers will give a vague reason, for example, the employee is away for personal reasons.

To learn more about suspensions with full pay, investigations and disciplinary procedures, download our Definitive Employer’s Guide to Misconduct and Disciplinary Procedures, which gives you expert tips and warnings of common pitfalls to avoid.

Director of Legal Services

James Tamm

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