There have been recent media reports that a senior (allegedly very well paid) employee was suspended from his workplace for allegedly stealing a sandwich from the staff canteen. Although there has been much speculation and comment about whether this was too severe in the circumstances, most commentators seem to be missing one of the key factors- the company was regulated by the Financial Conduct Authority (FCA).In brief terms, employers that are heavily regulated tend to be under a stricter duty to take action and possibly report any misconduct to their regulators (in the same way as for solicitors and doctors etc.).

But what about employers generally? Can you suspend an employee in order to carry out an investigation into alleged wrongdoing?  

Potentially, but proceed with caution!

Suspension should be approached with care by employers, and should not simply be used as a “knee-jerk” reaction to an allegation, particularly where the allegation is serious and therefore likely to damage mutual trust and confidence and can, in some extreme occasions, cause the employee an actual injury (psychiatric). In such cases, the employer must have “reasonable and proper cause” for suspending the employee, and therefore should ideally undertake a limited form of investigation first. You should also keep the period of suspension under review so as to ensure it is as brief as possible.

Before jumping to any suspension, employers should ask themselves:-

• Is there a right to suspend in the employees contract?

In the absence of an express contractual right to suspend, the employer will need to consider whether the nature of the employee's work gives rise to an implied right to work. If there is such a right, suspending could be a breach of contract.

• Is it a kneejerk reaction?

It is likely to be a breach of the implied duty of mutual trust and confidence if alternatives to suspension are not considered. Suspending an employee is, by its nature, unlikely to be a neutral act. Therefore, the key question is not whether suspension is a neutral act or even a necessary one but rather whether or not there is reasonable and proper cause for it. It naturally follows that suspension should never be a knee-jerk reaction but rather carried out for legitimate reasons in the circumstances of the case. These reasons should also be evidenced in writing so that the thought process of the decision maker is clear if the decision is challenged at a later date.

• Is it be possible to place the employee in another area of the business while the investigation is carried out?
• Are the sufficient grounds/evidence to suspend?

Prior to suspending, the employer must be satisfied it has reasonable grounds for the suspension in order to avoid breaching the implied term of mutual trust and confidence. It is perhaps most important to beware of acting peremptorily without reasonable grounds in cases of serious or sensitive allegations involving senior employees, as the potential repercussions of such an employee being suspended without good cause will be more serious.

• Who should be told?

Thought should be given as to what colleagues, clients and other external third parties are told about an employee's suspension and the investigation behind it, taking particular care that any statement made does not portray any assumption of guilt that may prejudice the fairness of a subsequent disciplinary hearing.

• How the suspension policy has been applied previously-

Employers are under a duty to apply policies/action fairly and even-handedly. If it is not, an employee may argue that they have been treated differently due to a protected characteristic (for example a disability) which might amount to a prima facie case of direct discrimination.

The information contained in this article is for information purposes only and is not intended to constitute legal advice. Due to the potential risks associated with suspending an employee, we would strongly recommend seeking legal advice. Our experienced advisors will be able to provide practical advice to support your business through the process.

For advice on suspension or employment & HR issues generally, contact our employment & HR team at [email protected] or call us on 029 2009 5500.