Suspension from work to investigate alleged wrongdoing

If you have kept up with the news in the last week you may be aware of a number of high profile suspensions from work that have created the wrong type of headlines for an employer.

TV channel GB News suspended Laurence Fox following comments he made about a female journalist on live television[1cited 3.10.23]

His remarks were widely condemned as “unacceptable, unjustifiable and indefensible”.

A number of complaints were subsequently made to the broadcasting regulator Ofcom.

Fox later said in a social media post that he stood by everything that he said.

Dan Wootton, the host of the show where Fox made his comments, was also suspended by GB News for failing to intervene and challenge Fox’s behaviour[2 cited 3.10.23]. Wootton later apologised and said he regretted the interview.

Calvin Robinson reportedly became the third GB News presenter to be suspended in a matter of days after he shared his support for Dan Wootton online[3 cited 3.10.23]

A decision to suspend an employee, in any sector, is never one that should be taken lightly or be a knee-jerk reaction to something that has occurred.

All organisations regardless of the size of a business need to be careful before opting to suspend any member of staff.

A fair and consistent procedure should be followed whenever making such a decision.

If the move to stop an employee from attending work is later found to be unreasonable, it could amount to a breach of the employment contract or the implied duty of trust and confidence.

It could also lead to legal action from the employee e.g. a claim for constructive dismissal[4 cited 3.10.23]

Therefore, it is essential that employers are cautious and fair when deciding to suspend an employee.

Suspension from work

Is when an employee under investigation is told not to attend work and to stop carrying out their duties until a particular matter is resolved.

Alternative options to suspension should always be considered and explored.

For example, where practicable a change of work location, working from home or stop an employee from doing part of their job e.g. if the employee does home visits and an allegation is about their conduct during such visits, then stop them from doing those calls.

The reason for suspension should always be clearly explained because the employee is entitled to know any allegation that is made against them.

There is another type of suspension from work, which can be for medical or health and safety reasons.

This can happen if any aspect of an employee’s job is considered to pose a risk to their health and safety e.g. they develop an allergic reaction to chemicals they are exposed to at work[5 cited 3.10.23]

An employer must pay an employee their usual pay (including bonuses) during medical suspension for up to 26 weeks, as long as they have been employed for a month or more.

The length of suspension when investigating allegations of wrongdoing

There is no minimum or maximum amount of time that a period of suspension should last for.

The guidance from ACAS is that it should be ‘as short a time as possible while you investigate’[6 cited 3.10.23]

Any period of suspension should be reviewed regularly to make sure it is still necessary. During that time an employer should stay in touch with the employee, to keep them updated and provide support.

A decision to suspend and how, why and when it is done and the period it lasts, can prove pivotal if an employee is later dismissed and makes a claim for unfair dismissal.

There are examples of employment case law in, which the period of time an employee has been suspended has proved significant.

The Court of Appeal upheld a finding of constructive dismissal where two nurses were suspended for a considerable period of time following serious allegations made against them regarding their handling of a patient[7cited 3.6.23]

It was found that the employer had failed to conduct a prompt and thorough investigation, communicate with the employees during their suspension, or review their suspension regularly.

The court said that suspension should not be used as a default position but only when there is good reason for doing so.

Employee rights while suspended

Suspension from work is not usually a punishment and an employee retains their employment rights during this time.

While an employee is not allowed to attend work, an employer will usually require them to be available to attend any investigation meeting.

Another common stipulation during suspension is that the employee is instructed not to speak to colleagues or clients.

This is lawful unless the employee can show that it interferes with their ability to later be able to answer any allegations levelled against them.

Breaches of the terms of suspension, either deliberately or inadvertently, are not uncommon.

Many colleagues are friends outside of work and likely to continue to communicate in various ways even if one of them is suspended from work.

There can be consequences for any employee who does not adhere to the terms of suspension.

An employer should consider the nature and seriousness of any breach of the terms of suspension and take appropriate action, which can include warning the suspended employee about their future conduct or taking further formal action.

During a period of suspension the member of staff should continue to receive their full pay and benefits unless their contract says otherwise.

An employee should be able to challenge a decision to suspend them if they think it is unfair or unreasonable.

Supporting an employee during suspension

Being under investigation and being instructed to stay away from work can have a harmful impact on mental and physical wellbeing of any employee, regardless of their role or seniority.

ACAS provide practical advice on support that employers can provide to stop mental health issues arising or getting worse, and it includes[8 cited 3.10.23]

• Communicating clearly with the person you're suspending when you tell them and throughout the process
• Making clear the suspension does not mean you've decided they've done something wrong
• Making clear you will listen to their point of view and consider it before making any decisions
• Keeping in regular contact throughout the suspension
• Updating them about the investigation and when it's likely to end
• Making sure the suspension only lasts for as long as it needs to
• Making sure the employee knows who they can contact if they have any concerns

Carrying out an investigation while the employee is suspended

The investigation should be conducted without delay, be thorough and fair and carried out in line with an employer’s disciplinary policy and procedure.

When conducting an investigation an employer should be fair and objective, gather as much information as possible, look for evidence to support the employee's case as well as against and keep the matter private and confidential.

Preparation is key and making an investigation plan can help. Consider what sources of information can produce helpful evidence e.g. interviewing witnesses and taking statements, emails or CCTV.

The employee can be invited to an investigation meeting also known as a fact-finding meeting. It gives them an opportunity to respond to any allegation and to provide details of evidence and witnesses that can support their case, and help an employer in establishing the facts.

An employer should only decide on the appropriate next steps when it has conducted a thorough and fair investigation after suspending an employee.