Suspension is when an employer tells an employee to temporarily stop carrying out work. In September 2022, the Advisory, Conciliation and Arbitration Service (ACAS) issued some important revised guidance on suspensions from the workplace. It is likely to help an employer if they are able to show they have considered and sought to comply with the terms of this guidance if a suspension were to be challenged by way of a grievance or a claim.

Though employers may consider suspending an employee while they carry out a disciplinary or grievance investigation, ACAS suggest that suspension should not be used automatically as a ‘knee jerk’ reaction to any disciplinary allegation. They state that suspension will only be needed in some situations, and in any event, should not be used as a means to discipline someone. They recommend that it is usually best to avoid suspension, if possible.

Is suspension needed?

ACAS recognises how suspension can be stressful for employees and can have a significant effect on working relationships and the mental health of the employee involved. In deciding whether to suspend an employee, employers are therefore advised to consider the wellbeing of the person under investigation, and how their mental health might be affected by the suspension.

ACAS guidance suggests that employers should only consider suspension if they believe it is needed to protect any of the following:

  • the investigation – if concerned about someone damaging evidence or influencing witnesses, for example;

  • the business – if there is a genuine risk to customers, property or business interests, for example;

  • other staff;

  • the person under investigation.

Suspension must be considered by the employer to be a reasonable way of dealing with the situation. If considered unreasonable, the employer risks legal action as a result of breaching the employment contract. The employee could resign due to a breach of the implied term of trust and confidence and pursue a claim for constructive unfair dismissal on the basis that the suspension was unreasonable, not warranted or excessive in duration.

Alternatives to suspension

It is important for employers to only suspend someone if there is no other option. In all circumstances, ACAS advises employers to check if there is an alternative to suspension. Examples include arranging for someone to temporarily:

  1. change shifts,

  2. work in a different part of the organisation,

  3. work from home,

  4. work from a different office or site,

  5. stop doing part of their job – for example stop handling stock if you as the employer are investigating a large amount of stock going missing,

  6. work with different customers or away from customers – if investigating a serious complaint from a customer,

  7. stop using a specific system or tool – for example, removing access to the organisation’s finance system if the investigation concerns a large amount of missing money.

Employers must be careful in keeping the reason(s) behind any such temporary change confidential wherever possible.

Where suspension is needed

If you as an employer, decide suspension of an employee is both necessary and reasonable, you should let the employee know as soon as possible. Though there is no legal requirement to give written notice for a suspension, it is best to put this in writing to avoid misunderstandings.

In communicating with the employee, it is considered good practice to:

  • explain the reason for their suspension;

  • set out what the next steps will be;

  • confirm they will continue to get their usual pay and employment benefits during suspension;

  • make clear that it does not mean you have decided they have done something wrong;

  • make clear you will listen to their point of view and consider it before making any decisions;

  • explain their responsibilities during suspension, for example what they can and cannot do (it is common for an employer to ask the suspended person not to talk to others at work about the investigation, in order to keep matters confidential and help protect the investigation);

  • give them a copy of the organisation’s suspension policy if there is one;

  • check you have up to date contact details for them, including an emergency contact;

  • name someone they can contact if they have any concerns, for example their manager or someone in HR;

  • let them know what support is available and encourage them to use it.

Employers have a legal ‘duty of care’ to support employees during suspension and to look out for their wellbeing. It is important for employers to:

  • make sure the suspension is as brief as possible. (The longer the suspension, the greater the effect on the employee’s health and wellbeing, and the higher the risk of legal action against the employer as a result of the suspension being considered unreasonable. It can also lead to a breakdown in trust in the employment relationship. As an employer, you should review the suspension regularly to make sure it is still needed and write to the employee to confirm the outcome of the review.);

  • keep in touch with the suspended person, and support their mental health and wellbeing;

  • carry out a fair investigation, in line with the ACAS Code of Practice on disciplinary and grievance procedures.

Advice for employees

If you as an employee do not agree with your suspension, you should raise the issue with your employer. It is considered best to do this informally at first. If this does not resolve the issue, you can raise your concerns formally by raising a grievance in writing. You could also talk to your trade union representative (if you are a member). It is then up to the employer to decide whether the suspension should continue.

If you would like advice on any of the above then please contact our expert Employment Law and HR team on 0845 287 0939 or submit your enquiry online.