advo’s Head of HR, Alison Gill, gives an important reminder and a warning.

Changes in case law mean changes to how organisations must approach breaches on employee behaviour.

“When I commenced my career in HR many years ago and when it was called Personnel, if there was any allegation of any serious misdemeanour that may have been gross misconduct, the advice was always to suspend the ‘accused’ employee immediately.

This has been the case for many, many years. However, as a result of case law, the advice to suspend has changed significantly and paid suspension should now only be implemented if there is no other alternative.

Case law determined by the High Court showed that suspension is not always regarded as a neutral act. In most cases, particularly where qualified professionals are involved, suspension is likely to have a negative impact on the individual’s reputation and their future career, even if allegations are not substantiated.

The High Court judged that the act of suspension was sufficient to breach the implied duty of mutual trust and confidence. The use of suspension could result in an employee, even if the case is not substantiated, leaving a business, resigning and claiming unfair constructive dismissal.

Case law and a number of related decisions resulted in a change in practice regarding suspension and this was confirmed in acas guidelines in September last year. This guidance tells us that an employer should only be suspending an employee while they carry out an investigation, if it’s a serious situation and there’s no alternative or in cases of medical suspension or pregnancy suspension to protect an employee’s health and safety, again where there is no alternative.

It must be acknowledged that for any employee, being suspended can be stressful and it is therefore important that employers consider the wellbeing and mental health of any employee they’re thinking of suspending,  only suspend someone if there is no other option whatsoever and plan what support will provided to any suspended employee. This would include things such as regular check in’s and signposting an employee to an Employee Assistance Programme.

In line with acas guidelines and in light of the above, advo would always recommend avoiding suspension if at all possible and the consideration of alternatives. These alternatives could include arranging for the employee to temporarily:

• Change shifts.
• Work in a different part of the organisation.
• Work from home.
• Work from a different office or site.
• Stop doing part of their job, e.g., stop handling stock if there is an investigation into a large amount of stock going missing.
• Work with different customers or away from customers, e.g., if there is an investigation into a serious complaint from a customer.
• Stop using a specific system or tool, e.g., if there is an investigation into a large amount of missing money.

You must also always keep the reason for any temporary change confidential wherever possible and as with all aspects of employment issues, the terms of such change, including that this temporary change is an alternate to suspension must be confirmed in writing.

You should only ever consider suspension if you reasonably believe it would protect any of the following:

• The investigation, e.g., there is reasonable and justifiable concern that the employee may damage evidence or influencing witnesses.
• The business, e.g., there is a a genuine risk to your customers, property or business interests.
• Other employees.
• The person under investigation.

At advo, we wish to support employers in all employee relations matters and the HR team at advo are always happy to help employers by providing robust advice, bespoke, compliant documentation and support through any such situation.”