What does the new ACAS guidance say regarding suspensions?

Deciding to suspend an employee can be a stressful situation for any employer. Failing to follow the proper procedures can harm your relationship with the employee and may even lead to a tribunal claim. To help employers navigate this tricky aspect of employment law, last year Acas published updated guidance for employers on how to carry out suspensions when conducting an investigation. This article summarises the guidance.

When to use suspensions?

Deciding whether or not to suspend an employee is not a decision that should be made lightly. Employees who are placed on suspension in the context of a disciplinary investigation may believe an assumption has been made as to their guilt, or that they are being punished. Therefore, you should only suspend an employee when necessary. According to Acas, suspension may be used if it is necessary to protect: 

• the investigation, such as where you are concerned an employee may intimidate a colleague who is acting as a witness;
• the business, such as where there is a risk to your customers or the public;
• your other staff; or
• the person under investigation.

Only use suspension when it is reasonable in the circumstances, having regard to the available facts. If suspension is not reasonable, and you suspend the employee anyways, this may amount to a breach of the contract of employment and result in an Employment Tribunal claim. When deciding if suspension is reasonable you should consider:

• all available information available so far;
• the severity of any identifiable risks if the employee is not suspended;
• the effect a suspension could have on the employee’s wellbeing and mental heath; and
• any alternatives to suspension.

Alternatives to suspension

Before deciding to suspend an employee, you should first consider whether there are any alternatives which would sufficiently protect your investigation. Alternatives suggested by the Acas guidance include:

• Altering shifts;
• Moving the employee to a different part of the organisation;
• Having the employee work from home;
• Limiting their duties;
• Having the employee work with different customers or away from customers; and
• Removing their access to a particular system or tool.

If the risk to your investigation can be adequately managed without resorting to suspension, you should not suspend the employee.

If you are considering moving an employee within your organisation, and there are two employees you may move, careful consideration is needed on whether to move one or both individuals. If you are considering moving employees because one person has raised a grievance about the other, Acas advises against moving the person who raised the grievance as the employee may interpret this as punishment for raising the grievance.

How to carry out a suspension

If you decide that suspending an employee is necessary to protect your investigation, you must carry out the suspension with due regard to the wellbeing of everyone involved. Clearly explain the reasons for suspension to the employee, as well as what is expected of them while suspended. For example, employees will usually be prohibited from speaking with customers or co-workers while suspended, and may not attend any of your business premises. As far as is possible, keep the employee’s suspension confidential. Acas recommends discussing with the suspended person what you plan to tell their manager, co-workers, and clients.

Make sure the employee understands that suspension is not a disciplinary action and does not mean you have made a decision about their guilt. While suspended, the employee should continue to receive their full pay and any benefits they may be entitled to. While there is no legal requirement to give written notice of the suspension, Acas recommends doing so to avoid any misunderstandings.

A suspension should last no longer than necessary to protect your investigation. This should be kept under constant review. You should also keep in regular contact with the employee, to keep them up to date with what is going on in your investigation and to check in on their wellbeing. Remind them of any support that may be available to them.

Suspensions can be a difficult aspect of employment law, and employers may want to take advice before placing an employee on suspension. If you have questions about suspending an employee, or about any other aspect of a disciplinary procedure, contact our Employment Team today at employment@warnergoodman.co.uk or call 023 8071 7717.