In the wake of #MeToo and the associated shift in the way allegations of sexual harassment are treated by employers, making the decision to suspend an employee can have far-reaching repercussions for employers and employees alike.
Importantly, in 2007, the Court of Appeal, in Mezey v South West London and St George’s Mental Health NHS Trust, held that suspension, regardless of how it is framed by an employer, is not a “neutral act” as it “inevitably casts a shadow over the employees’ competence” and, in some instances, his or her character. In light of this, employers should be careful not to rush this process and ensure that any action taken is reasonable in all the circumstances.
Here are a few points employers should keep in mind before making the decision to suspend an employee in a potential disciplinary context:
- Suspension should not be a “knee-jerk” reaction and should only be imposed in circumstances where it is reasonably warranted.
- Consider whether an alternative is available, such as relocating the employee to a different site or desk, allowing them to work from home or changing their hours.
- Provide the employee with written confirmation of the suspension and the reason(s) for it prior to any period of suspension. Employers should also make clear that it has not formed any view as to whether wrongdoing had been committed by the employee.
- Exercise caution in communicating the employee’s absence to others so as to avoid any suggestion that it has pre-judged the outcome of the investigation or disciplinary proceedings.
- Ensure that the employee is aware of his or her obligations while on suspension, such as remaining contactable and available during work hours as required.
- Although there is no statutory limit, any period of suspension should be as brief as possible and any investigation should be carried out without delay.
- Any period of suspension should be paid. Where an employment contract permits an employer to suspend an employee without pay, this should only be done in exceptional circumstances.
- The employer should consider whether IT/systems access needs to be suspended during suspension, but ensure provision is put in place to enable an employee to access material to respond to the allegations (possibly through supervised access) and to contact the employee if work-related queries arise.
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