We review the new ACAS guidance on suspending employees recently published in September 2022. While this advice has no legal status and does not state anything entirely new from a legal standpoint, it is likely to be referred to by employees and representatives when making tribunal claims.
It still remains the case, that an employer must have reasonable and proper grounds to suspend an employee. Suspension should never be imposed as a knee-jerk reaction and should follow some initial investigation or preliminary fact find.
In particular, the new ACAS guidance on suspending employees refers to how employers should support employees' mental health and wellbeing in the suspension process. The main points of the guidelines are summarised below.
Carefully consider the impact of suspending someone
Suspension can have a significant effect on working relationships and the mental health of the people involved. The Court of Appeal in Crawford and another v Suffolk Mental Health Partnership made the important point that suspending someone 'can be psychologically damaging'. Even if the person is cleared of all charges against them, 'suspicions are likely to linger because suspension appears to give credibility to them'.
ACAS advise that you should only consider suspension if you believe it's necessary to protect:
- The investigation – for example if you're concerned about someone damaging evidence or influencing witnesses;
- the business – for example if there's a genuine risk to your customers, property or business interests;
- other staff;
- the person under investigation.
Only suspend if it’s the final option
You should not suspend someone without first considering if there are any other alternative options open to you such as temporarily:
- changing their work or shift pattern;
- deploying them to work in a different part of your organisation, from home or from a different office or site
- removing some of their duties under suspicion – for example stop them handling stock if you're investigating a large amount of stock going missing
- ensuring they work with different customers or away from certain customers – for example if you're investigating a serious complaint from a customer
- stopping them from using specific software, systems or tools– for example removing access to your finance system if you're investigating a large amount of missing money
The Court of Appeal in Agoreyo v Lambeth made it clear that if you don't have a good reason to suspend an employee, it is likely to seriously damage contractually the ‘implied duty of trust and confidence’ between you and your employee. If this happens, the employee can resign and claim constructive unfair dismissal if they have worked for the Employer for at least two years, and/or breach of contract.
Briefly, the case involved a teacher who was accused of using excessive force when dealing with two challenging children in her care. She was suspended before any questions had actually been asked of the people who knew about the problems she was having and had offered support.
The ACAS guidance makes it clear that you still have to assess if you need to suspend someone even if an external body is investigating the same issue (such as the police or a regulator). It recommends that on consideration of suspension, you should make a decision based on the specific situation and on what you have been able to establish and find out so far.
Handling two individuals
If you are deciding between moving two people, you need to act fairly and reasonably. ACAS suggest that you might decide to move both people; only move one person; or not move either person. It makes it clear that if you need to separate two people after one of them makes a serious complaint, you should not move the person who made the complaint to avoid the view that they are being punished for making a complaint.
The decision
To help decide whether suspension is required, you should consider:
- what you have found out so far;
- the wellbeing of the person under investigation, and how their mental health might be affected if they are suspended;
- the risks if you do not suspend an employee – this might be a risk to others at work, the business or the investigation as a whole;
- how serious those risks are;
- any alternatives to suspension you could use.
Once you have considered all these points, you will need to decide how to act. You should only suspend someone if you feel it's a reasonable way of dealing with the situation. If it's not reasonable, there is a risk that you could be breaching the employment contract, which could lead to litigation.
Supporting the employee
If you decide to suspend someone, it's important to support them during suspension. Signpost any external support available (such as counselling, employee assistance support helplines) and make sure that you check in on progression of the investigation and communicate with them reasonably regularly - particularly if the suspension lasts a number of weeks.
Often reputational damage occurs where the employer fails to explain why a key member of staff has suddenly disappeared, or why they have been moved. ACAS recommend that you should keep the reason for any temporary change confidential wherever possible and discuss with the employee what you will tell others at work about the temporary change. It's important to get this right to avoid damaging your on-going relationship with the employee.
What doesn’t feature in the guidance
The guidance fails to explain how to fairly suspend a member of staff, how long you can suspend and whether you have to pay them or not.
We recommend that you:
- Inform the employee why they are being suspended. Make sure they understand that suspending them doesn't mean that you have decided that they are "guilty".
- Make sure that the confirmation letter is consistent with what you have told them verbally.
- Only suspend them for as short a time as possible with pay (by not paying them this could imply that they are suffering financial detriment and that they have been found guilty at the outset)) to allow for the investigation to be properly conducted. You should be thinking in terms of days not weeks.
- If delays occur, keep in touch with the employee and consider whether you still need to suspend them.
What does it mean for Employers?
- Employers should be prudent in keeping a note of which of the alternatives (in accordance with policy or ACAS guidance), have been considered before suspending and why suspension is the correct course of action.
- Suspensions should be kept under continual review, and employees should be regularly updated about the timing of any investigations, disciplinary and grievance processes.
- Employers should consider what else they can do to safeguard the employee’s mental health. Referring to an Employee Assistance alone is not likely to be found to be sufficient.
If you are a Wirehouse client, contact our HR advice line to speak to our team of Employment Law Consultants about the new ACAS guidance on suspending employees. If you are not a Wirehouse client call 03333 215005 or email info@wirehouse-es.com
