There has been new guidance issued recently by Acas in relation to workplace investigations and suspending employees.
Generally, when carrying out an investigation, a company or organisation would assess whether suspension should be considered for any of the employees involved. Provided there was no breach of contractual terms, salary, or benefits, it was previously an option that could be considered without serious legal risk, particularly if said contract contained a suspension clause.
However, cases in recent years have highlighted a potential issue that employers will want to take into account when carrying out an investigation. If it is thought that an employer has unreasonably suspended an employee, this could be deemed as a breach of the implied term of mutual trust and confidence, and this can in turn allow the employee to claim constructive dismissal.
Acas – Their Guidance
Acas issued revised guidance regarding suspensions on 8 September 2022. Although aimed at ‘business owners’, it would be deemed applicable for most employers along with giving some advice for employees. The guidance covers the key principles that should be considered with regards to a suspension, as well as detailing the process that should be carried out before reaching such a decision.
Following this process and the key principles would be wise for an employer, particularly in the event that a suspension comes under review by a court or tribunal.
There are five key steps in the decision-making process:
- Deciding whether to suspend someone
- Investigating the situation
- Considering whether suspension is needed
- Alternatives to suspension
- Making the decision
Something worth noting is that the guide strongly encourages employers to think carefully when taking the decision to suspend an employee, and to consider the effect that suspension can have on an employee’s mental health and wellbeing. The guide advises employers to consider each situation carefully, that suspension may only be needed in some situations and that it’s best to avoid suspension where possible. Another point the guide covers is the effect that suspension can have on an employee, advising that it can be a stressful experience and that suspension should only be considered when there is no other option. Should a suspension be deemed necessary, the guide advises that employers should have a plan in place with regards to the support they will provide to the suspended employee.
Restoring the Balance
This guidance appears to be attempting to move away from employers having a ‘knee jerk reaction’ towards suspension, and to change the viewpoint that issuing a suspension is a ‘neutral act’. It has become clear over the years that in reality a suspension can have a major impact on an employee’s work and home life, along with the potential to influence their future career as well.
Things to Consider as an Employer
Although the guidance from Acas appears to be attempting to change the general approach towards suspension, it is not there to prevent employers from issuing suspensions when required. There are a variety of scenarios that would deem a suspension the appropriate course of action, for example –
- Preserving evidence
- Protecting witnesses
However, the new guidance does mean that any suspension process is carried out considerately, carefully, and comprehensively.
One way to ensure the process is comprehensive, would be for an employer to record in writing the steps that have been taken in relation to deciding to issue a suspension. Should a suspension ever be challenged, having a record of events on hand would be beneficial for both parties. Another point that employers may wish to keep a record of would be the plan implemented to support the suspended individual’s mental wellbeing. This would show compliance with the guidance, as well as highlighting the employer’s commitment to comply with the implied duty of maintaining trust and confidence with the employee.
Have you read the new guidance? If yes, what are your thoughts on it and how will it impact how you carry out your role in your organisation?
If you would like further advice on this difficult issue, please do get in touch