Suspending an employee from work isn’t something to take lightly.
All permanent employees have the legal right to attend work and employers must provide them with work to come and do.
If you’re thinking about telling an employee to leave the workplace or not to come to work tomorrow, this is only an option in a couple of very specific circumstances.
Suspension isn’t a tool you can use when you're totally fed up with an employee and you just want to get rid of them for a spell. Nor can you use it because you don't have enough hours of work for someone, say if a job has been cancelled or you haven't had as many customers as you expected.
So when can you consider suspending someone?
In this blog post we take a look at what suspending an employee means, when it’s appropriate, how the process works, and some of the consequences that can arise if you get it wrong.
What is suspension?
Suspension is removing someone from the workplace for a period of time. It isn’t the termination of employment and the employee is not on annual or sick leave. Rather, you have made the decision that for the sake of your business and your team, it is best for the person not to be there right now.
When is suspension appropriate?
Typically, you can only consider suspending an employee in one of two situations:
- There is conduct or a behavioral issue that is so severe that you cannot have the employee in the workplace while you investigate the matter and manage the fallout. For example, you have concerns or evidence that an employee is committing fraud, or you’ve received a bullying or sexual harassment claim against them.
- The employee poses a health and safety risk to themselves or others and can’t be in the workplace, e.g. they are intoxicated, under the influence of drugs, or aren’t in an emotional state fit for work.
Suspension can only be used in this narrow range of circumstances because, like getting suspended from school, suspension carries with it a certain amount of stigma that can cause reputational, psychological, and social damage to an employee.
Case law has established that an employer must have a really good reason to suspend an employee in order to justify these damaging effects.
The suspension process
The process for managing a suspension is quite prescribed and failing to adhere to it puts you at risk of legal consequences and potential penalties.
So it's really important that if you are considering suspending an employee from work that you:
- Propose the suspension to them and explain why.
- Give them a short period to think about it.
- Provide them a chance to give you feedback.
- Genuinely consider their feedback before making a decision.
Even in pretty dire circumstances, e.g. you witnessed one of your team members punch a colleague or completely lose their rag at a customer, you still can’t walk up to the person and tell them to go home immediately.
In such a situation, we recommend that you take the person aside (a private room is best) and explain that you propose suspending them while you deal with the consequences and sort the issue out.
Give them 10-15 minutes alone to think about the proposal and then return to ask for their comments, take these into account, and then make your decision.
Remember, suspension is a serious matter. Even if you have a very watertight reason, you still have to follow fair and reasonable process in order to justify the likely blowback on the employee.
Failing to follow fair process (or have a good reason for the suspension) could mean the employee has a personal grievance case against you for unjustified disadvantage.
How long should suspension last?
As with any employment issue, the quicker you can deal with the suspension and resolve it, the better it is for you, the suspended person, and your business.
The length of any suspension will depend on how long it takes to conduct an investigation or allow enough time to reduce any health and safety risk.
A suspension lasting longer than 2-3 weeks is unusual, and would only be appropriate if you were undertaking a complex investigation and could justify the time taken.
What if the employee disagrees?
We get asked this question a lot, because quite often the employee will oppose suspension, think it’s unfair, and may get angry or upset.
The bottom line is that you don't have to get their agreement (you never would be able to suspend anyone if that was the threshold!).
The person is entitled to their opinion and you must genuinely consider their feedback, but the employer still has the final say on the suspension and can decide to suspend if it’s a fair and reasonable response to the situation.
Again, keep a cool head. You don't have to use specific legal or HR language, just explain that you understand that they disagree but you have considered their point of view and are still suspending them from work for the foreseeable future while you investigate what's happened.
Accompany them back to their desk, office or locker to collect personal belongings, and walk them out of the building.
Keep a written record of everything you do in case you need to defend the suspension later on.
What if the employee refuses to leave?
It’s not often that an employee will refuse to leave the workplace once suspended, but it does happen.
Firstly, if you're dealing with an emotionally volatile situation, don’t do anything that would put yourself or others in danger. So don’t try and get anyone out of the building using physical force. Not only is this potentially dangerous, it will reflect badly on you if the matter is taken further later on.
It is far better to give the person some time to reflect and cool off. Leave them alone. Instruct them not to come back tomorrow. If they are argumentative, empathise but be clear about the situation and the legality of the process you’ve followed, and remind them you don’t need to get their agreement to suspend them. Ask them to leave again. It’s likely that they will go once they realise they're not welcome. If not, isolate them as best you can (in a meeting room or office) and leave them for the rest of the day.
In extreme situations, you could trespass them from the workplace, issuing a verbal or written warning to stay off the property. This is a pretty serious step and we recommend getting expert advice before you do so.
Does an employee get paid while they are suspended?
This is another question we get asked a lot. Whether an employee is paid while they're suspended depends on what is stipulated in their employment agreement.
We recommend that you do continue to pay an employee during suspension, because you haven’t formally established whether they have done anything wrong yet, and it clearly shows the employer hasn't pre-determined the outcome of the investigation.
Continuing to pay the person also makes the suspension process easier, because employees are often more agreeable once they learn they’re going to be paid while they're suspended.
This may seem frustrating and unnecessary, especially if the evidence is overwhelming or you’ve seen the awful behaviour with your own eyes. But remember, you still need to go through a full investigation process so that you can make a fair and reasonable decision about what's likely to have happened.
Until you've made a final decision, the person is still an employee with all the rights and obligations they would normally have.
What happens to the employee while they are suspended?
While suspended, the employee does not come to work and they cannot contact anyone else from the workplace either.
The employer can withdraw their access to company email, intranet etc, and if the employee has a company phone or car (that is only for work use), the employer can remove their access to these items for the period of suspension.
Do I need a suspension clause in the employment agreement?
We recommend having a suspension clause in the employment agreement so everyone knows the suspension process and their rights and obligations (all MyHR employment agreements have a suspension clause in them). It’s also a good idea to set out the reasons for suspension in company policy, e.g. the code of conduct.
Case law has established that everyone in the business must know what standards of behaviour are expected of them and what the consequences are for not meeting them. It’s risky to take serious action like suspension if people aren’t aware that what they've done is wrong and/or unacceptable in your workplace.
What happens next?
What happens next will depend on the outcome of the investigation into the matter that caused the suspension.
The person may be cleared of any wrongdoing and can return to work (you will need to do some work to repair any damage done to the employment relationship) or they may have done something wrong, in which case you would take appropriate disciplinary action, or in cases of severe misconduct, look to terminate employment.
Get more information on terminating employment.
When suspension works well
Suspension can be especially useful when there are complaints or concerns about a person’s behavior that have been raised by other team members. By removing the person from the workplace, the rest of the team has a safe space to talk honestly about what has been happening so it is easier to get a clear sense of the situation and the claims made.
Suspension also works well when the employer or management team need space to go through an investigation, especially if it's an issue like fraud or sharing confidential information. Not having the person around (with access to your systems) will allow you to more accurately determine what has happened and whether there's been any wrongdoing.
When suspension doesn’t work so well
Suspension shouldn’t be seen as a punitive measure, so be careful if you or a manager are driven by feelings of frustration or annoyance with an employee that have been building up over a period of time.
We’ve seen situations like this boil over when a person has messed up or done something regrettable but the behaviour doesn't meet the threshold to justify suspending them.
Make sure you have a legitimate reason and follow fair process, that way you will always arrive at a reasonable and justifiable result.
