Acas has recently published new guidance to help employers when considering staff suspensions at work, specifically during investigations. The overriding message from the guidance is that employers should carefully consider whether it is absolutely necessary to suspend an employee.
A suspension is when an employer tells an employee to temporarily stop carrying out work, usually to enable the employer to carry out a disciplinary or grievance investigation. This is often a tricky area for employers to navigate, but the Acas guidance provides a helpful roadmap.
The Acas guidance also goes into detail on the process for suspending someone, as well as mental health support, pay and holiday during suspension. However, this blog focuses on the 10 main considerations Acas recommends that employers should take into account when deciding whether or not to suspend someone.
What the new Acas guidance says
1. Carry out initial enquiries to determine whether suspension is reasonable:
A suspension should only be used when it is a reasonable way of dealing with the situation. If suspension is not a reasonable way of dealing with the situation, then this could mean the employer is breaching the employment contract, leaving them open to the risk of legal action. To determine whether suspension is reasonable, an employer will first need to find out what happened, who was involved and how serious the situation is. Suspension should not be used automatically or as a knee-jerk reaction to a situation.
2. Identify what or who the suspension may be protecting:
Suspension might be reasonable if it is needed to protect the person being investigated, other staff or the business itself, eg where there is genuine risk to colleagues, customers or property. It could also be reasonable to suspend someone to protect the investigation process itself, for example where there are concerns that the employee might influence witnesses or damage evidence.
3. Explore alternatives to suspension:
Acas is clear that it is “usually best to avoid suspension if possible”, especially if there is an alternative way to handle the situation while it is being investigated. Temporary changes to working practices may well be sufficient as an alternative to suspension. For example:
- If an investigation has arisen from a serious customer complaint, the employee might be asked to work away from customers or with different customers.
- If money or stock has gone missing, removing an employee’s access to certain stock or systems might also be worth considering.
- If there are allegations relating to how an employee has interacted with colleagues, it may be appropriate to ask the employee to temporarily change shifts, or to work from another site or from home.
4. Maintain confidentiality:
As far as possible, an employer should keep the reason for any temporary change confidential. To do otherwise might cause a breakdown in trust, which could lead to the employer breaching the employment contract (and so potentially entitling the employee to resign and claim constructive unfair dismissal). The employer should also discuss what others in the organisation will be told about any temporary change with the employee.
5. Decide who it is most appropriate to move if there are two people:
If there are complaints against two (or more) employees, then an employer may need to consider moving one or both people. If deciding to move only one person, the employer should carefully consider the situation and act reasonably and fairly when making a decision.
6. Take care not to victimise the complainant:
If the employer needs to separate two people after one of them makes a serious complaint, Acas advises that the person who made the complaint should not be moved, otherwise this could be seen as a punishment for making a complaint. If the complaint amounts to a protected act under the Equality Act, then this could put the employer at risk of a victimisation claim. For more on victimisation, see this blog.
7. Don’t use suspension to discipline:
Suspension does not mean an employee has done anything wrong. As such, it should never be used as a disciplinary measure in itself and, in keeping with the Acas Code of Practice on disciplinary and grievance procedures, it should be made clear to affected employees that suspension is not considered a disciplinary action. Nevertheless, suspension could leave the employee feeling like they are being judged to have done something wrong. It is therefore important for the employer to consider this when making their decision to suspend, and only suspend if there is no other option.
8. Consider the wellbeing of all those involved:
An employer should consider any risks to the wellbeing of the person under investigation, including how their mental health may be affected by their suspension. Likewise, the employer should also consider the risk to other employees, or the business itself, if they not to suspend that employee. Either way, the employer’s decision should be guided by how serious the risks are on both sides, considering everything known about the situation so far.
9. Take into account any parallel external investigations:
Whenever an external body, such as the police or a regulator, is also looking into the matter, the employer should consider whether this is relevant to the internal investigation. Even in such cases, an employer is not automatically obliged to suspend the employee, so alternatives to suspension should be considered in those cases as well, while taking into account the views of the external body.
10. Keep the decision to suspend (or not) under review:
The Acas Code states that periods of suspension should be “as brief as possible [and] should be kept under review”. In more serious cases of misconduct, it may be inappropriate for the employee to remain at work pending investigation. However, the investigation should be carried out “without unreasonable delay” to avoid prolonging suspension longer than necessary. Conversely, whenever deciding that it would not be reasonable to suspend someone initially, the employer can still consider suspension as an option later in the investigation if circumstances change.
Further practical considerations for employers
Whenever deciding whether or not to suspend an individual, it is prudent for an employer to document in writing any steps it has taken to comply with the guidance. This could strengthen the employer’s position, particularly if a suspension is later reviewed by a tribunal or court. In any case, compliance with the guidance, and maintaining a record of that fact, can help demonstrate to all those involved that the decision to suspend was reasonable and not one that the employer has taken lightly.
For more information, see our blog: Suspension during ongoing investigations: a balancing act.
If you require further information about anything covered in this blog, please contact Iman Kouchouk or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2022