This Advisory considers the circumstances in which it may be appropriate for an employer to suspend an employee, when a suspension may amount to a breach of contract, factors that should be taken into consideration before making the decision to suspend and what to include in a suspension letter. It is intended to assist HR practitioners and managers to avoid claims that the suspension may have been in breach of contract or outside the 'range of reasonable responses' test applied by the employment tribunals when considering whether a fair procedure has been followed prior to taking the decision to dismiss.
Can I suspend?
Employers are frequently uncertain whether they can lawfully suspend an employee when a potential gross misconduct issue first comes to light. The answer is, it depends. In cases involving serious misconduct, or where the employee's continued presence at work could prejudice an investigation, the answer is usually 'Yes, you can suspend'.
However, because an unwarranted or badly handled suspension can backfire and lead to a claim by the employee for breach of contract, we recommend that you think carefully about the following four things before taking any decision to suspend:
- whether or not the terms of the employment contract allow you to suspend;
- whether suspension would amount to a breach of the implied term of trust and confidence;
- whether suspension might constitute unfavourable treatment giving rise to a discrimination claim; and
- whether the employee's contract, or the nature of their work, creates the express or implied right to work.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.