September 18, 2018
Employers Should be Cautious when Suspending an Employee – Beware the Law of Unintended Consequences
Suspending an employee can seem the next logical step when an allegation of harassment has taken place, but employers should be careful and consider the ‘law of unintended consequences’.
The recent incident between actress Roxanne Pallett and actor Ryan Thomas within the Celebrity Big Brother house highlights how a seemingly innocent act can escalate into a bullying and harassment claim.
Roxanne Pallett accused Ryan of deliberately ‘punching’ her in the ribs while he was play fighting with her, and branded him a “woman beater” &dnash; the accusation was swiftly rebuffed, with TV footage showing a much lighter incident than the one the actress described.
Within the workplace we often don’t have the luxury to replay camera footage when trying to establish whose version of events is most accurate, leaving employers in the difficult situation of what the appropriate response should be.
An employers initial reaction is usual to suspend the accused with immediate affect, but while suspension in itself is not a disciplinary sanction, it can lead to colleagues making assumptions of guilt which can tarnish an innocent employee’s reputation.
Employers need to know when suspension is appropriate
The ACAS Guide for Discipline and Grievances at Work gives the following examples of when suspension might be appropriate:
- the employee poses a potential threat to the business or other employees
- the allegation amounts to gross misconduct
- the employee’s presence at work may make it difficult for the employer to investigate the allegation (for example where there is a risk that the employee may destroy evidence or attempt to influence witnesses)
Alternatives to suspension
A decision to suspend should only be taken as a last resort.
You should first consider the alternatives to suspension, which might include temporarily moving the employee to a different location and/or duties, either with their agreement or through prior contractual authority.
Steps to take prior to suspending an employee
Employers must check the employee’s contract of employment and the organisation’s disciplinary procedure to identify whether or not it has the contractual right to suspend and, if it does, any terms that might relate to the suspension.
When suspension is considered appropriate, employers should ensure they:
- Establish if there is a time limit on periods of suspension
- Clarify what pay and benefits the employee will be entitled to while suspended. (Suspension must be on full pay and contractual benefits unless there is a clear contractual provision permitting the employer to suspend without pay and benefits.)
- Communicate the suspension in writing to the employee
Consider any practical aspects of the suspension. For example, whether or not the employee’s access to the building/computer network/email system should be temporarily suspended
- Do not delay the disciplinary process
- Keep the suspension under review in light of any new evidence or progress to a full disciplinary hearing
- Communicate the lifting of the suspension to the employee, in writing, as quickly as possible
The period of suspension should be as brief as possible, as any prolonged delays in the disciplinary process may make the suspension unreasonable. And where delays are unavoidable, it is important to keep the employee informed of the reason(s) for these delays.
Caution should be exercised before removing an employee’s access to the computer network or email system, as the employee could argue that the employer has prejudged the outcome of the investigation and disciplinary process.
It’s important therefore to have good grounds for believing the employee could pose a threat to the business if their access to your system(s) is not removed.
During suspension – carrying out the investigation
Gather as much information to support both employees’ versions of events as possible. Consider other instances, for example any outstanding feuds leading up to the alleged instance taking place. Check CCTV and gather as many witness statements as possible.