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Taking the suspense out of suspension...key considerations for employers

Taking the suspense out of suspension...key considerations for employers

Do you have the right to suspend? Check the contract

So as to avoid any argument as to whether an employee has an implied right to work, the safest course of action for an employer is to ensure that they have an express right to suspend an employee in the contract of employment. It is also helpful if this clause sets out how the employee will be paid during any period of suspension. Employees usually continue to receive their full pay and contractual benefits during any period of suspension.

Is suspension necessary? Suspension is a serious step

In cases of serious misconduct, it is often usually necessary to suspend an employee. However, suspension can often be necessary in other circumstances such as where there is potential risk to the business, company property or other employees, where there is a risk that the employee may interfere with the investigation – i.e. destroy evidence/approach witnesses or simply where relationships have broken down. What is key to remember is that no decision as to an employee’s guilt has been made and suspension is not disciplinary action of any sort. Consideration should be given as to whether suspension can be avoided and, if it cannot, any period of suspension should be as short as possible and kept under regular review.

Have you informed the employee of the terms of the suspension? Verbal conversations need to be followed up in writing

It is often the case that an employee is informed of their suspension verbally (due to the urgency of the matter). Not only should this be done as soon as possible but it should also be followed up in writing. It is important to ensure that an employee is clear of their rights and obligations during any period of suspension. In particular, an employee should be given a point of contact and told who they can and cannot contact (e.g. clients, colleagues etc) and reminded of the fact that although they are not required to carry out any work during their suspension, they remain bound by their contract of employment.

Are you actions reasonable? Will the employee try and argue you have breached the implied term of trust and confidence

Providing the employer has reasonable grounds for suspending, an employee is unlikely to be able to argue that suspension breaches the implied term of trust and confidence. Care should also be taken in the way in which the suspension is actually executed. Remember, suspension is not a form of disciplinary action and no conclusions should be reached about an employee’s culpability. Although humiliating an employee who you suspect has been up to no good might make you feel better in the immediate aftermath, it may well come back to haunt you later in the process. Depending on the nature of the suspected misconduct, employers may wish to suspend an employee’s access to its email and computer network, insist that any company property is returned immediately or search the desk or office of an employee. Again, careful management of such actions is required so as to avoid any allegations of unfairness or unreasonableness. Proportionality is key here. Is the action you are thinking of taking justified when balanced against the suspected misconduct or are you pushing the boundaries a little too much?!?