Acas publishes new guidance on staff suspensions

Acas have recently published new guidance to help employers understand when it's appropriate to suspend an employee. 

It recommends employers: 

Begin by conducting an initial investigation

In most cases you should not automatically decide to suspend an employer before getting some initial information about what's happened, who's involved and how serious it might be. This will help you understand the situation and work out whether suspension might be appropriate.

That doesn't mean that you necessarily have to undertake a mini-investigation before deciding whether it's appropriate to suspend a member of staff. But, to avoid making a knee-jerk reaction to allegations (particularly if these are very serious) you do need to gather enough information so that you can make a reasoned decision. And you should do that without delay, otherwise you might prejudice your ability to dismiss someone without notice further down the line.

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 point that suspending someone 'can be psychologically very damaging'. And, even if the person is cleared of charges against them, 'suspicions are likely to linger ... because suspension appears to give credence to them'. 

Acas advise that you should only consider suspension if you believe it's needed to protect any of the following:

• 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 there's no other option

You should not suspend someone without first considering if there are any other options open to you such as temporarily: 

• changing their shifts
• 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 – for example stop handling stock if you're investigating a large amount of stock going missing
• working with different customers or away from customers – for example if you're investigating a serious complaint from a customer
• stopping them from using a specific system or tool – 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 your employee, it's likely to seriously damage the implied duty of trust and confidence between you. If that happens, the employee can resign and claim constructive unfair dismissal if they've worked for you for at least two years, and/or breach of contract. That 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 been asked of people who knew about the problems she was having and had offered support.

The Acas guidance also 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 if you're considering suspension, you should make a decision based on the specific situation and what you've found so far.

Dealing with 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. But 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 perception that they are being punished for making a complaint.

Making your decision

To help decide whether suspension is needed, you should consider:

• what you've found so far
• the wellbeing of the person under investigation, and how their mental health might be affected if they're suspended
• the risks if you do not suspend an employee – this might be a risk to others at work, the business or the investigation
• how serious those risks are
• any alternatives to suspension you could use

Once you've considered all these things, you will need to decide how to act. And, you should only suspend someone if you feel it's a reasonable way of dealing with the situation. If it's not reasonable, there's a risk you could be breaking the employment contract, which could lead to legal action.

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 helplines etc) and make sure that you check in with them regularly - particularly if the suspension lasts a number of weeks.

Often reputational damage occurs where the employer doesn't explain why a key member of staff has suddenly disappeared, or why they have been moved etc. Acas recommend that you should keep the reason for any temporary change confidential wherever possible and discuss with the employee what you'll 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's not in the guidance

The guidance does not explain how to fairly suspend a member of staff, how long you can suspend them and whether you have to pay them. 

We recommend that you:

1. Inform the employee why they are being suspended. Make sure they understand that suspending them doesn't mean you have decided they are "guilty".
2. Make sure that the letter confirming this is consistent with what you have told them verbally.  
3. To minimise reputational damage to the suspended employee, decide what neutral message you will give to other staff (and if necessary third parties such as customers or service users).  A good option for both parties is to refer to the individual taking “personal leave” because it implies reasons which do not need prior notice or explanation. 
4. Only suspend them for as short a time as possible to allow for the investigation - you should be thinking in terms of days not weeks.  
5. If delays occur, keep in touch with the employee and consider whether you still need to suspend them.
6. Unless there is a clause in the employee’s contract allowing for suspension without pay, you must continue to pay the employee and allow them to use any contractual benefits. 

Need more information?

Please contact our expert Jenny Arrowsmith if you need any help to decide whether or not to suspend a member of staff. Jenny has considerable experience with dealing with suspensions including in a safeguarding context. 

We've also recorded a podcast to discuss the issues you need to consider before suspending a member of staff. It will be available w/c 17 October. Please let me know if you'd like to receive it.

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