Suspension from work

Overview

If you are suspended from work, it is a temporary status determined by your employer where allegations of gross misconduct have been made against you, are being investigated, but have not been established or dismissed. You should not be suspended if it is not suspected gross misconduct, although you can be suspended for health and safety reasons.

Suspension is the result of a decision by your employer that the usual employment relationship cannot function effectively while the investigation (or situation) is continuing. It does not mean that you are culpable. You are entitled to the presumption of innocence of the gross misconduct being investigated.

  • Your employer can only suspend you for gross misconduct.
  • The reason for your suspension must fall in one of the 4 potentially fair reasons in Section 98 Employment Rights Act (1996).
  • If your employer needs you to be out of the work place for any other reason they should put you on Garden Leave.
  • If your employer does not act BOTH reasonably and use a fair procedure a suspension will be unfair.
  • There will be a Polkey Reduction if your employer was reasonable, but the procedure was unfair.
  • Employee Rescue resources provide you with audits, sample letters and instructions to check whether your suspension was reasonable and used a fair procedure.
  • If a fair procedure was not used you can pursue a claim or use the information to negotiate a settlement for yourself.
  • You should use the period of suspension to investigate the allegations against you and prepare your response. Use the Employee Rescue Suspension Rescue Kit to prepare for the disciplinary investigation and make sure that your rights are not infringed during the process.

The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to Suspension. Your employer does not legally have to follow the Code, but if they don’t the Employment Tribunal will take this into account and increase your compensation by up to 25%. The Employment Tribunal can also reduce compensation by up to 25% if it believes that you have unreasonably failed to follow the Code. The ACAS Code says that in cases where a period of suspension with pay is considered necessary, the suspension should be;

as brief as possible;
kept under review; and
should not be used as a disciplinary sanction 

Suspension must be on full pay unless your contract of employment says otherwise. There is no general or implied right to suspend an employee without pay. It is up to your employer to prove that they are entitled to suspend you without pay.

Suspension will catch you by surprise in circumstances where you would not have had any opportunity to prepare or even know fully what the allegation is against you. It may lead to you losing your job and is not something to be taken lightly.

Even though Suspension is not an indication that you are guilty of any offence, being suspended damages your reputation in the workplace and potentially with clients and customers if they find out about it. You will also be unable to practice your skills whilst off work because you are still employed and bound by your employment contract (unless your employment contract says differently).

 

Resources Available

Surviving a workplace suspension

How to fight dismissal on Probation

Disciplinary action and capability

Discrimination at work

How to survive a criminal charge, conviction or caution at work

Social Media and Unfair Dismissal

Surviving a disciplinary investigation at work

Surviving Capability and Performance Management

The Disciplinary Hearing

Alcohol and Drugs at work

How to prepare a schedule of loss for unfair dismissal

DOCUMENTS, FORMS AND LETTER TEMPLATES

 

Your rights during suspension

You have rights during the period of suspension because you are still an employee. The ACAS Code applies to any matters relating to discipline. Your employer has a legal duty to act reasonably and use a fair procedure. The ACAS Guide gives directions on what it is to act reasonably and fairly, and the duties are further developed by the Courts and Tribunals in case law.

 

Your employer’s duty to act reasonably and use a fair procedure

The ACAS Code says that whenever a disciplinary process is being followed it is important that your employer deals with issues reasonably and fairly. This means that;

  1. Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
  1. Employers and employees should act consistently.
  1. Employers should carry out any necessary investigations, to establish the facts of the case.
  1. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
  1. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
  1. Employers should allow an employee to appeal against any formal decision made.

 

The duty to act reasonably

There must be a good reason for suspension. The ACAS Guide to Disciplinary and Grievance procedures complements the Code. The non-statutory guidance says that suspension with pay may be necessary while investigations are being carried out. You should only be suspended;

  • where relationships have broken down
  • in cases of gross misconduct
  • where there are risks to other employee’s or the company’s property
  • where there are responsibilities to other parties
  • where there are reasonable grounds for concern that evidence has been
  • tampered with or destroyed
  • where there are reasonable grounds for concern that witnesses could be pressurised before the investigation meeting

To justify suspension, your employer must have good reason to believe your continued presence in the workplace could create further problems, and should be prepared to provide evidence of this.

The ACAS Guide says that the fact that your employer has reason to suspect that you have been engaged in misconduct, or even gross misconduct, does not of itself justify suspension pending investigation.  Your employer must consider alternatives to suspension such as redeployment or working from home.

There is an implied contract term that an employer will only exercise the right to suspend on reasonable grounds.  In the case of McClory & others v The Post Office [1993], the High Court said that even though there is no general contractual obligation on an employer to act reasonably or fairly in suspending an employee, an employer must;

Act reasonably; 

Have reasonable grounds for the suspension;

Ensure that the period of the suspension is reasonable

In addition, whether a suspension is reasonable or not will depend on events as they occurred. Reasonableness is not judged with hindsight. 

The Employment Tribunal and the Courts cannot substitute their own view of “reasonableness” for that of your employer. It is up to your employer to say what they thought was reasonable in the given circumstances and show the procedure that they used to come to that conclusion. The Employment Tribunal or Court will then look at the circumstances and the procedure and agree or disagree with your employer.

 

The duty to use a fair procedure

Principles of a fair procedure are laid out in the ACAS Code of Practice on Disciplinary and Grievance procedures, rules of natural justice, your employment contract (or collective agreement) and your employer’s internal disciplinary procedure.

  • There should be a reasonable suspicion of gross misconduct and your employer should undertake an initial investigation before making the decision to suspend.
  • Your employer must follow contractual procedures relating to suspension correctly.

In McLoughlin v Setanta Insurance Services [2012] the High Court considered the issues of suspension at the beginning of a disciplinary process and the fairness of that decision to suspend. Miss McLoughlin asked the court for an injunction ordering Setanta Insurance to take her off suspension because the decision to suspend her was unfair and in breach of fair procedures. She also said that the suspension letter was simply a ‘dressed up attempt’ by Setanta Insurance to dismiss her on the grounds of gross misconduct and get out of paying her any notice payments. The High Court said that the letter of suspension read as if Setanta Insurance had already reached a determination of guilt against Miss McLoughlin. The High Court rescinded her suspension because it was clear that Setanta Insurance had already decided that she was guilty of gross misconduct.

In Camden and Islington Mental Health and Social Care Trust v Atkinson [2007],  Mrs Camden was a nurse who was suspended over allegations of her mistreatment of two patients. At her suspension meting one of the allegations was found to be unfounded but Camden and Islington Mental Health Trust did not lift the suspension. During the suspension Mrs Camden retired. Later, she claimed unfair constructive dismissal at the Employment Tribunal. The case went to the Employment Appeal Tribunal who said that although she had stated that she was retiring, the real reason for her resignation was her continuing suspension which the EAT found to be a fundamental breach of her contract.

The EAT found that Camden and Islington Mental Health Trust had breached the implied term of trust and confidence. The main reason that she resigned was not for retirement but because of the continuing suspension. The EAT said that Mrs Camden had been constructively unfairly dismissed.
In Agoreyo v London Borough of Lambeth, a teacher was suspended because of the force she used with two children. She had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. She resigned the same day. The High Court said that suspension is not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. Taking into account the statutory guidance for local authorities, it was noted that a knee-jerk reaction must be avoided and that suspension must not be the default position. The reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”.

The Court concluded that suspension was adopted as the default position, was a knee-jerk reaction, and amounted to a repudiatory breach of contract. This was not undermined by a resignation in friendly terms.

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Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.

 

 

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