Consider these points before suspending an employee. Plus, who should investigate a disciplinary issue?

This article focuses on the tricky issue of whether an employee should be suspended whilst a disciplinary matter is investigated. We also look at who should be chosen to investigate the allegations, along with who can then hear the disciplinary itself and make a decision.

Suspension

It should be remembered that suspension in itself is not a disciplinary sanction and should not be viewed as one. It is a means of allowing an organisation to investigate a disciplinary matter safely and without interference.

As it is not a ‘punishment’ as such (although often the employee feels as if it is), suspension should be on full pay, even where the evidence seems to be overwhelming, which should continue until the disciplinary hearing has taken place and the individual has had chance to explain their actions and present their evidence.

There are also certain requirements regarding the process as per the ACAS Code of Practice (see www.acas.org.uk) that are explained below.

When to Suspend

It used to be the case that suspension was quite common, especially where there was an allegation of gross misconduct as the view was that if something is so bad that you would consider summarily dismissing the individual then until the evidence shows gross misconduct did not take place the employee should not be allowed on the premises i.e. they should be suspended on full pay while the matter is investigated.

However, that is now no longer the case, and suspending the accused employee is seen as pretty much a last resort. In fact it can seriously go against an organisation at tribunal if they suspend when they did not have to. It can lead to legal action e.g. if the employee can show suspension was unwarranted and led them to lose trust and confidence in the employer they may be able to claim unfair or constructive dismissal.

Therefore, caution should be taken and, unless there are exceptional circumstances employers should only consider suspending an employee accused of serious allegations on full pay where:

• there is a genuine belief that the individual may interfere with the investigation,
• there is genuine fear for the safety of other employees if the individual remains on company premises, or
• what the individual has been accused of is so bad that you cannot risk having them on site.

Avoiding Suspension

Even where suspension seems justified it may be possible to avoid suspension through actions such as moving the individual to another site or department, asking them to work from home, changing their working hours or increasing their supervision levels, and alternatives such as these should be considered before making a decision to suspend.

Then if, after consideration, you decide to suspend afterall the reasons for that decision and why it was unavoidable should be documented in case you are challenged at a later point that suspending the employee was unreasonable.

Another option may be to temporarily ask the individual to carry out a different role during the period of investigation as an alternative to suspension, although it should be of a similar status to their current role to ensure that such action is not viewed as a sanction or punishment.

At this stage nothing has been proven and the individual has not had their statutory right to respond to the allegations.

It is human nature for individuals who have been suspended to feel aggrieved and also to be concerned that a decision has already been taken regarding their employment so it is important to reassure them that they will receive a full and fair hearing, no decisions have been taken yet and this will not happen until all evidence has been considered and the individual has had the opportunity to explain their actions.

The suspension meeting

According to the CIPD (see www.cipd.co.uk) and in line with the ACAS Code of Practice, when suspending an employee the following should be explained and then confirmed in writing:

• The employee is now suspended on full pay while the company investigates the allegation(s) made against them.
• Explain the allegations.
• They may not enter any company premises without your express permission.
• They may not contact any employees, customers or suppliers without your express permission.
• If they are contacted by employees, customers etc they should explain the agreed reason for their absence e.g.  they are not in work at present due to a private matter.
• If the investigation results in disciplinary action they will be given full details and the opportunity to prepare their defence.
• They are suspended for an initial 7 days. You will contact them after this period, or sooner if relevant, to update them on how the investigation is progressing.
• Although they may not contact any employees at present, if the company decides to hold a disciplinary hearing you will arrange for them to be able to speak to relevant witnesses at the appropriate time to help them prepare their defence against the allegations.
• They need to be available at all times during working hours in case the company needs to contact them or they are required to attend work for an interview or other reason.
• Their suspension will be confirmed in writing.
• Specify who they should contact, including telephone numbers and email addresses, if they have any queries or concerns.

Although it is not covered in the ACAS or CIPD guidelines we normally advise organisations to agree with the individual what will be said to colleagues regarding why they are not in work. We would avoid the easy options of saying the individual is off sick or on holiday as that is not true. We advise employers to simply state that the individual is not in work at present due to a private matter, and request the individual to do the same.

The employee would then normally be asked to collect any belongings and be escorted from the premises in as discrete a way as possible. ‘Collect any belongings’ refers to bags, coats etc, obviously they should not be asked to clear their desk as that would indicate a presumption of guilt prior to the disciplinary hearing.

The suspension should then be confirmed in writing. For the CIPD approved model letter to adapt to the individual circumstances please see the 186hr ‘Practical Guide to Disciplinary Action’. This is a comprehensive guide to taking disciplinary action including CIPD approved model policy documents, detailed explanations of each stage of the disciplinary process, CIPD approved model letters covering every eventuality of each stage, along with 2 hours of telephone-based consultation with a highly experienced, highly CIPD qualified senior HR professional. The guide is compliant with the ACAS Code of Practice and costs £249 plus vat. Click here for further details

Once the individual has been suspended and the investigation takes place, it is important to communicate with the employee while they are off work. They would normally be suspended for an initial 7 days. After this period has elapsed you should review the suspension and write to them with an update if they are still suspended. See the above 186hr guide for a CIPD approved model letter.

What if the employee resigns whilst suspended / during the investigation?

It is not unusual for this to happen and the employee is perfectly entitled to resign at this point. The advantage to them of doing this is that resigning prior to a decision being made in a disciplinary hearing would mean that no accusations have been proven against them and any employer reference must therefore reflect that. Likewise, the employer would not be able to talk about the allegations to employees, customers or prospective new employers as they have not been proven in a disciplinary hearing.

Under these circumstances if the employer wishes to warn prospective employers of the potential risk of employing the individual they may be able to state in a reference that the employee resigned whilst suspended and during a company investigation into serious allegations against them. It would need to be stressed that the allegations were therefore unproven. Clearly, organisations should take advice before stating this in an employment reference as there is a significant litigation risk in doing this.

Also, if the employee does resign at this point then be mindful of the wording of their resignation letter. If they state their resignation is ‘with immediate effect’ then their employment should be terminated that day and they should not receive any further notice pay.

If their letter does not say ‘with immediate effect’ you may wish to accept the resignation but query whether the individual wishes to remain employed for their notice period – and explain that if they do, the investigation will continue and if they are still employed at the time of the disciplinary hearing then it will take place as planned and an outcome will be decided and placed on their record.

Once this is explained we find that most employees change the wording of their resignation to ‘with immediate effect’ to avoid the outcome being on their record and potentially included in an employment reference, saving the employer a significant sum in terms of notice pay.

For the CIPD approved model letter to send to an employee who resigns whilst suspended please see the above 186hr guide.

Who should investigate / hold a disciplinary hearing?

At around the same time as deciding whether to suspend the employee or not, you should decide who will investigate the allegations and who will hold any potential subsequent disciplinary hearing.

Unless there are exceptional circumstances that make it necessary, the individual who investigates the misconduct or poor performance issue must be different to the individual who holds any subsequent disciplinary hearing i.e. unless there are no practical alternatives the same individual cannot be both the investigator and the judge!

When choosing the investigator, the individual should ideally have been trained in how to conduct a disciplinary investigation. Often the Human Resources department will investigate but this is not a requirement, any competent employee can do it.

or further details of carrying out a competent disciplinary investigation please see the above 186hr ‘Practical Guide to Disciplinary Action’ It includes full guidance and explanations of the process, CIPD approved model letters, and the CIPD guide to conducting disciplinary investigations. The guide also comes with 2 hours of telephone based support from a highly experienced, highly CIPD qualified senior HR consultant.

With regards to who should hold any subsequent disciplinary hearing, please ensure you follow the company disciplinary policy regarding who may do this as policies often specify certain roles or levels of seniority that can perform disciplinary hearings.

Wherever possible the manager or director who holds the disciplinary hearing should be more senior than the individual being disciplined. Normally it would be the employee’s line manager, but some organisations prefer to choose an independent manager to avoid any accusations of bias or the outcome being a foregone conclusion, or complaints such as ‘he never liked me and has been trying to get rid of me for ages ….’.

Ideally the disciplining manager will have been trained in the process but if not, following the above 186hr guide will give them all they need to carry it out fairly, professionally and competently.

Finally, when choosing which manager will hold the disciplinary hearing, remember that if the accused employee appeals against the outcome of the process, that appeal should be heard by a manager or director who is more senior than the disciplining manager. Therefore, unless the individual being disciplined is very senior you may wish to avoid a director holding the initial disciplinary hearing as that may mean the MD would have to hear any subsequent appeal and they may not thank you for that!

We hope this article has been useful. If you have any queries about disciplinary action, or any other HR issues, please contact us