Disciplinary suspension can be complicated: if an employer gets it wrong they risk being in breach of contract and this can entitle an employee to resign and claim constructive dismissal. We have put together a checklist for anyone faced with disciplinary suspension to help them challenge their employer’s decision, if appropriate, or just ensure they are being treated fairly throughout the process.
- Does your employer have an express contractual right in your employment contract to suspend you? Alternatively, is the right to suspend contained in a disciplinary process in the staff handbook?
- If yes, check the limits of this power and that your employer is observing them. For example, does the suspension clause state any limits on the circumstances in which it may be used and/or the amount of time an employee may be suspended for?
- If there is no obvious right for your employer to suspend you contained in any employment documentation, it may be in breach of contract simply by attempting to exclude you from work.
- Has your employer formally notified you in writing that you are being suspended?
- If yes, their letter should include the following information: the reason for the suspension and how long it is expected to last, that suspension is not an assumption of guilt and is to enable the investigation to progress, your rights and obligations during the suspension. For example, that you should be contactable during normal working hours and a point of contact (such as an HR manager) should you have any queries during the suspension.
- Suspension should only be considered if there is a serious allegation of misconduct and the employer reasonably concludes that:
- working relationships have severely broken down
- you are a risk to other employees, property or customers
- you are subject to criminal investigation which may affect if you can do your job
- If the disciplinary allegation is of a less serious nature or, none of these issues are relevant then your employer should not be considering suspension.
- An employer must have reasonable and proper cause to suspend you. It may be acting unreasonably (and in breach of contract) where the disciplinary allegation against you isn’t credible. For example, if your employer is acting on vague, contradictory or uncorroborated allegations.
- Suspension should not be a knee-jerk reaction to disciplinary allegations. ACAS guidance states that an employer should carefully consider all other options before suspending an employee. Can your employer show they have done this? Are there alternatives which might be more appropriate in your case? If so, ask your employer to use these instead of suspension. Examples include, on a temporary basis: moving you to a different team or role (of similar status and on the same terms and conditions), allowing you to work from home, changing your working hours, placing you on restricted duties, requiring you to work under supervision.
- Is your suspension potentially discriminatory? For example, if you have a protected characteristic and are suspended but another employee without the protected characteristic but, in the same situation, isn’t.
For further discussion of disciplinary procedures, see our previous article: Suspended from work? Everything you need to know.
How can we help you?
If you have questions because you are currently suspended or subject to disciplinary proceedings then talk to our employment law specialists today. We’ll help you figure out the best way forward for you.