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NOTE: There were 4 speakers identified in this transcript. 

0:00:09 - Helen
Hello and welcome to the HR edit, the podcast from Southeast Employers, taking a look at those common and often tricky HR questions. Today I'm joined by Michelle, sarah and Chelsea and we're going to be discussing suspensions. So, Michelle, would you mind kicking us off with explaining what suspension is? 

0:00:24 - Michelle
Absolutely so. Before we get into the detail suspension, I just want to set the scene a little bit, and that is around the core principles of an employment contract. So, effectively, an employee presents as ready, willing and able to work and the employer is then obliged to pay them a fair days wage for the work that they do. If the employee is not ready, willing or able to work, that duty to pay no longer exists. Depending on the contractual provisions, that either steps into a statutory sick pay position for someone who's not well enough to work or, if you've got occupational sick pay provisions in your contract for employment, those would then kick in. So when we're talking about suspensions, we are talking in the main about individuals who are presenting as ready, willing and able to work. So the employer has that duty to continue to pay, even when the employer is saying we don't want you to work. 

0:01:26 - Chelsea
So to answer the question about what is suspension then, Helen, basically it is an employer asking an employee not to attend work, even though they are ready and willing to do so in accordance with their contract of employment. So it can be that they not attend work, but it can also include that they don't contact colleagues, but basically they still get paid and they still receive any contractual benefits during the period of suspension. In terms of when it might take place, suspension sometimes can be for a health and safety reason. For example, if somebody has had a disease that means that they can't do their job for a period of time afterwards, that's effectively a suspension. Or in pregnancy. Sometimes, in certain roles, people may it may not be safe for somebody to attend the workplace, so they would either be redeployed or potentially put on a sort of medical suspension. 

But normally suspension is used because an allegation or a complaint has been made and that needs to be investigated, and the employer thinks that the employee's presence in the workplace or communicating with their colleagues will compromise the investigation that the employer needs to carry out. It's really important to say upfront that suspension is not a disciplinary sanction and neither is it an indication of guilt. It's used purely to ensure that a fair investigation takes place. So suspension is quite a big thing to do to somebody because obviously they're saying I can come to work and you're saying we don't want you at work. So it has implications for the employee's well-being, for working relationships with their colleagues and their reputation. So suspension should always be really carefully considered before an employer enters into that decision. 

We're talking about this now because there was a recent employment tribunal case which came out over the summer. This was Simmons versus Croydon, London Borough Council, where a suspended employee was found to be entitled to full pay even though they were off sick and under the sick sickness absence payment rules would have gone to half pay. It actually concerned a chief officer and chief executive terms and conditions. It's not necessarily the same as the most local government employees, but it has sort of. The case has wider implications for councils in terms of thinking about what exactly their terms and conditions say and also a reminder of the need to use suspension very cautiously and also to keep it as short as possible. In this case the suspension went on for quite a long time as well. 

0:04:30 - Sarah
And, like you say, to be used very, very cautiously. Have you got any examples, Michelle or Chelsea, of when perhaps suspension was used improperly, shall we say? 

0:04:40 - Michelle
I have many, the most memorable I would say we had an employee who had been on suspension for over 12 months, and the reason behind that was there was also a police investigation going on at the same time and for various reasons, it was decided that the employer would not undertake the disciplinary investigation whilst the police were still going through their processes, and it meant that that individual was off work for over a year, being paid full pay, not contributing to the business at all, and by the time we got to the point of reviewing that suspension you know we were well over 12 months down the line. The relationship between that individual and the organisation had pretty much broken down, so we really struggled then to bring them back into the workplace and sort of engage them in the processes that we then needed to go through. 

0:05:41 - Chelsea
That does sound a challenge and of course the usual advice for police investigations is that the burden of proof in a criminal case is beyond reasonable doubt. But in an employment law situation it's reasonable belief, which is a much lower threshold. So employers can take disciplinary action whilst a police investigation is ongoing and don't have to wait for it to conclude in most circumstances. It might be different with specific professions, but in the main most employees could be concluded well before then, couldn't it? 

0:06:23 - Michelle
Absolutely, and actually the national police organisations all recognise the importance of employers being able to conduct their own investigations simultaneously. In most cases, and where you have really good relationships with your local police force, there is often the possibility that the evidence that is collected through the police investigation can be shared with the employer for their internal disciplinary processes as well, and that's actually included in the police guidance around conducting investigations that impact on employers. So, yeah, that was very much the extreme case and when we in HR got hold of that data around the length of suspension, we interceded very, very quickly on that one and changed the approach you mentioned it a little already, but could you tell us any more about when employers should suspend an employee? 

0:07:23 - Chelsea
As I said earlier, suspension is most often used during the investigation of a potential disciplinary issue, and it would be necessary if the presence of the employee in the workplace is potentially going to compromise that investigation. So examples of that could be if there is a risk that the employee might intimidate witnesses, if they may destroy or damage evidence, which could mean deleting data or throwing records away or changing data and things like that, or even attacking systems. If there's any risk to property data stock maybe I worked on a case where there was an allegation of theft and so obviously in order to investigate that, we needed to protect the stock. So that was keeping somebody out of the workplace was helpful in that case. Or also if there's a risk to other employees or customers or clients which might be a risk of violence or abuse or anything of that order. 

0:08:35 - Michelle
We used to use the acronym PEP People Evidence Property and it's a really quick and easy way of just running through what the risks are when you're considering suspension. 

0:08:46 - Chelsea
That's brilliant. That's really helpful, nice and easy to remember. The other circumstance where an employer might want to consider whether suspension is appropriate is if the allegation has the potential to result in a finding of gross misconduct warranting summary dismissal. Basically, summary dismissal means that the employee has acted in such a way that they have breached the contract of employment because they've undermined the mutual trust and confidence that's necessary to maintain the employment relationship. So if you are potentially going to argue that, or if there is potential that the employee's actions could have breached their contract, it might be difficult to justify allowing the employee to continue in the workplace after that action. So that's the case when suspension might be used in order to investigate promptly and then come to an appropriate finding in a disciplinary process. 

It's really important to note that suspension could be put in place at any stage. It doesn't just have to be at the beginning of an investigation. So if an investigation starts and an employer then uncovers things that it thinks would then be at risk property, data, people, whatever, then you could then choose to suspend at that point, or even once an investigation's happened and during the actual disciplinary process, if the investigation finds that it's necessary to then move into a process. But it's also important because of the risks of suspension. It's also important that employers should consider other possible alternatives, so whether they can mitigate the risk in another way other than completely removing the employee from the workplace. So that could be moving the employee to work in a different area, restrict access to certain systems, documents, places within the workplace or even people saying you know, moving somebody to a different team or different work base. It could be changing their duties, maybe changing their reporting line, something like that. 

So there could be other options to suspension. And I have an example of this from an organisation I used to work in where there was an allegation that somebody who drove company vehicles had someone had smelled alcohol on their breath and during the day, which obviously was completely unacceptable they're driving company vehicles and particularly with members of the public in then they needed to be not driving and certainly not drinking during the day. Now, initially the managers wanted to suspend, but the team was relatively small, so that would have been problematic and would have created a lot of work for other people which was not easily covered. So I suggested that instead we simply suspended the employee from driving, so they were still in the workplace and still carrying out the rest of their duties whilst we investigated the potential report of them potentially being alcoholic Suspension sounds like an incredibly risky business, not just for the employer but also the employee from the end of the suspension. 

0:12:20 - Sarah
I suppose Can you give us a sort of overview in terms of the contract risks and the wellbeing risks as well. 

0:12:27 - Chelsea
Yeah. So in terms of the contractual risks, as we said at the beginning, the basic employment contract is the employee works, the employer pays them. So if you're asking the employee not to work, you are potentially undermining that employment contract. So if you are going to do that, you need to be behaving reasonably when you do that. So a poorly handled suspension for unjustifiable reasons, unnecessarily protracted, that could actually risk breaching the employee's contract and give rise potentially to a constructive dismissal claim because you as an employer have not behaved in a way which is conducive to maintaining the mutual trust and confidence of the employment relationship. A poorly handled suspension could also undermine the reasonableness of any subsequent disciplinary procedure and therefore potentially the fairness of any later disciplinary action or even dismissal. So it does need to be done reasonably and done well. 

0:13:44 - Michelle
And from an employee's perspective, the risks there. We can all imagine how we would feel if we were being accused of something. Whether we had done it or not, that initial allegation of wrongdoing will always have an emotional impact on an individual. So the risks for when we're talking about the individual are really around their well-being. But it then leads into their working relationships. They're being suspended and being told potentially not to talk to their colleagues and that sort of cuts off that social aspect as much as anything else and at base level humans are social people. 

And also, if you're being told to leave the workplace for a period of time, what does that do in terms of your reputation within the workplace? So it's not just handling the suspension process correctly, it's thinking about the impact that then has on the individual and making sure that you are putting support in place for individuals. So making sure they're aware of any EAP support they have access to, maintaining contact with them on a regular basis and really thinking carefully about whether the no contact with colleagues aspect is absolutely necessary to protect the integrity of the investigation. Obviously there will be circumstances where it is absolutely necessary, but it's just making sure that you're mindful of the impact that's being told to stay away from the workplace and being accused of doing something might have on that individual. 

0:15:26 - Sarah
Michelle, just for other people out there, obviously not myself. What does EAP stand for? 

0:15:31 - Michelle
Sorry. Yes, my bad acronyms are the worst thing. It's Employee Assistance Programme. Thank you, obviously. 

0:15:39 - Sarah
I knew that. 

0:15:42 - Chelsea
So thinking about if an employer decides that suspension is necessary and that it's reasonable and justifiable in the circumstances. But there are obviously a number of actions that the employer should take. So the first thing is that they should inform the employee that they are being suspended and the reasons why they're being suspended. They should explain what that suspension means and stress that it's not disciplinary sanction or action, that it doesn't imply guilt and also that it may not result in a disciplinary action at the end of the investigation, that it is purely to allow the investigation to proceed. 

The employer needs to clearly set out what the terms are. So don't come into the workplace, don't contact colleagues or certain colleagues if that's what's been decided. But the employee does still need to be available for work because they are going to receive full pay and benefits during the period of suspension. So you also need to let them know what happens about any annual leave that they may have booked in the short term and also sickness or anything like that. So they should still go through their normal sickness absence reporting procedures if they become sick during the period of suspension. But, as I say, the Simmons case indicates that you need to be really careful about what it actually says in your contractual terms, because even if the employee is off sick, if your disciplinary procedure states that they're entitled to full pay during suspension, then they would be entitled to full pay even though they're sick during that period of suspension. 

0:17:28 - Michelle
That's a very good point, Chelsea, and I think it comes back to that core principle of the contract. We, as the employer, have told them not to come to work and we know from experience that quite often when someone is suspended it creates a stress that then results in a fit note being submitted because they are stressed and anxious about the disciplinary investigation. Just because someone has submitted that fit note does not give you the ability to switch them over to sick pay. They are still on a suspension for the investigation purposes and this is where it becomes really important to keep that under review, because at the point at which the suspension is no longer required for the protection of the investigation, that is the point at which the fit note can kick in and the individual can then be moved on to sick pay. But it has to be very clear in terms of the decision-making process that the investigation suspension is no longer required for the protection of the investigation. 

0:18:38 - Chelsea
Yeah, that's a really good point, Michelle. It's also important that the employer informs the employee of how long they anticipate the suspension will be likely to last, so how long you think it might take to conclude the investigation that you need to do, and the employer needs to confirm all of this in writing to the employee. There are other things that might need to be thought about as well, as we've talked about the impact on an employee's wellbeing and their reputation and things like that. So you may need to discuss and agree with the person how their absence from the workplace is going to be communicated to their colleagues and what's going to be said and it's important to remember that at this point the employee has done nothing wrong, because you're still investigating an allegation. There is no evidence yet that it has taken place in either direction and also a consideration about whether witnesses may need different or more detailed information about the suspension to other colleagues. 

So, for example, I worked on a case where somebody had made unwarranted advances of a sexual nature to a third party and that third party needed to be informed that that person had been told that they were not to come on to the premises or to attempt to make any contact with that third party, whereas the employee's colleagues were just told that they weren't going to be in the office for a couple of weeks. But the witness in this case the person who'd reported the issues to us had to be told that they were actively prevented from contacting them and that if the person tried to do that, the witness needed to get in touch with us immediately. So they needed to know that they were being protected. So sometimes you will have to have a think about which messages need to go to who, respecting both the people who've made the allegations, but also the employee's right to confidentiality and the need to not disclose more information about them to other people than is strictly necessary to do. 

0:21:05 - Sarah
Chelsea, just going back to the bit that you mentioned about annual leave, because I just want to make sure I've got this clear in my mind if you are suspended on full pay, that suggests that you need to be ready to work as and when the suspension ends. However, if the employer has indicated it might be a month, are you able just to pack up and go on holiday? Just in my mind, just kind of clearing that up Is that something you've got to take as annual leave, or are you able just to go off on a jolly somewhere? 

0:21:41 - Chelsea
Well, of course, in theory, yes, you could, and just take the risk that the employer won't ask you to come back to work early or won't ask you to attend a disciplinary hearing or something during that period of time. In practice, you would probably be in breach of your contract by doing that and not notifying the employer that you intended to leave the country and therefore you weren't going to be available for work. 

0:22:08 - Sarah
Right, yeah, just clear that up for me, because I was kind of trying to work out what your contractual obligations are under suspension, but actually it sounds like your contractual obligations are the same as if you were in work anyway. 

0:22:19 - Chelsea
Yeah exactly, and that's essentially the difference between suspension and leave. Even though you're not in the workplace, you are required to still be available. 

0:22:30 - Michelle
And I think one of the key things is that you may have suspended someone to protect the investigation because at the time there was no work available to give them where they could be working at home on that particular item. But actually partway through that suspension, a particular project might come up, or the need to write a report might come up that that individual could do whilst they are not allowed on site. So it's having that ability to contact them and say here's what we need you to do. 

0:23:03 - Helen
So, while the suspension is in place, what should be happening during that time? 

0:23:09 - Chelsea
So obviously, the main reason for the suspension is to allow the investigation to go ahead unhindered. So the employer should make every effort to complete the investigation promptly. They need to maintain communication with the employee during the suspension, so they need to continue to show concern for their welfare, flag up to them any support available via an employee assistance provider or any other similar support that's available to them. If there is any reason to believe that the suspension is going to need to be extended or to go on longer than was initially anticipated, then the employer should be keeping the employee informed of the progress of the investigation and why it's necessary to continue or extend a period of suspension. And the employer should also regularly review throughout the investigation whether suspension is still necessary. 

Because, for example, if you've suspended because you're concerned that somebody might change data or delete data or something like that, as soon as you've mined all the data that you need, even if you haven't analysed it yet, is there a need for that employee still to be suspended, for example, or could they come back in whilst you do your analysis of the data? 

So it's really important to keep it under regular review and to keep communication open. Basically, the employment relationship is still existing, so you need to treat that person as you would do any other employee. They're not, at this point, guilty of anything and have done nothing wrong. The suspension either needs to be brought to an end as soon as possible, which may or, as I've said, may not coincide with the end of the investigation process, and then, if a disciplinary process needs to commence, the employer needs to go through all the appropriate procedures to notify the employee formally of the allegation and the fact that you're into a disciplinary process, what will happen under that process, and needs to make a decision as to whether the suspension needs to continue into the disciplinary process as well or whether the employee can return in order to go through the disciplinary process and just keep them up to date, really. 

0:25:43 - Michelle
I think that last point is very important in terms of that assessment as to whether the suspension needs to continue up until the date of the hearing, and that's most likely to be. In cases where there's an allegation concerning risk to people, you're more likely to need to keep that person out of the workplace until the hearing is underway and an outcome is kind of determined. Because you're protecting individuals, whether that's other employees or members of the public, that property can be replaced. It's generally ensured People should be a primary concern when considering whether that suspension needs to be retained up until the hearing. 

0:26:33 - Sarah
It's that kind of basic duty of care, isn't it to the employees and then to the person that, potentially, is about to be suspended as well? There's still that duty of care that exists there from the employer's side. 

0:26:44 - Michelle
And that often gets forgotten. Because a manager receives an allegation about one of their direct reports and it's a knee-jerk reaction they've done something wrong, we need to get them out of the workplace. And that's where the danger sits, because it is a knee-jerk reaction where, by you know, you're reacting on emotion rather than assessing the situation and recognising that it is just an allegation. And we know, you know, not just from an employment perspective, but in life in general false allegations do get made. People are found innocent of crimes on a fairly regular basis. So actually, just because an allegation is made, you know managers have to remember it is not an indication of guilt, it is just something that needs to be looked at before a decision can be made. 

0:27:45 - Helen
Chelsea mentioned before about a health related suspension. Could you tell us a little bit more about that? 

0:27:49 - Michelle
Yes. So there are circumstances where you may need to suspend someone on health grounds. They may be attending work and you have concerns that they are not fit to work. That could be for any sort of reason. It could be you think that they are under the influence of drugs or alcohol. It could be that you think that they are suffering from some kind of illness that means that they are not going to be effective at work. It could be that you know that their situation has changed so you are not convinced that the work environment is still safe for them to be in. 

In all of these circumstances you are able to suspend that individual on medical grounds. The same rules apply. Carefully considered, you know, looking at all the circumstances and making sure that at the forefront of your mind, is this the right thing for the individual? But also you have that duty of care to the rest of your workforce and any customers that individual might come into contact with. It still needs to be kept under review. You still need to keep in touch with the individual. 

But the key difference here is that if you are suspending on medical grounds, you need to get them referred to occupational health to have that medical opinion on the actual medical implications of what is going on and if at that point, occupational health confirm that they are sick, they're not able to work, they're not presenting as ready-willing and able, then you can potentially move them over to your sickness absence scheme. 

But again, you need to be very careful about that because if they are saying I'm ready, willing and able and their GP isn't prepared to provide a fit, note there is some that there is complication there. But generally if occupational health have said they are not fit to be at work, chances are their GP should be doing the same thing. If occupational health come back and say the workplace is not suitable for this individual and this could be pregnancy related, or if someone's undergoing treatment for cancer, the workplace may not be safe for them, in which case that medical suspension has to remain in place until you are able to find duties in a safer environment or an environment that is safe, or that they can do away from the workplace. Again, throughout the suspension, the contract employment remains in place. They need to be on full pay and they need to be available to work if you ask them to do so. The best. 

0:30:25 - Chelsea
Medical suspension is potentially less controversial and in terms of the communication around the absence and things is much easier to understand what to say to other employees. And also, of course, a suspension on pregnancy grounds will ultimately end with somebody transferring to maternity leave at the appropriate point. 

0:30:49 - Sarah
Yeah, absolutely. And just, just to say here that we actually recorded an episode of the HR edit on demystifying occupational health. So if you're interested in in learning a bit more about occupational health, give that one a lesson. It is episode three of series two, I believe. 

0:31:05 - Chelsea
So we've talked a lot about suspension today, but just a quick summary of the key points to remember. 

Firstly, suspension is not a disciplinary sanction and doesn't imply guilt or wrongdoing. 

Secondly, the employees should be paid in full throughout suspension, unless you have expressed terms and conditions in your contracts of employment that state otherwise. 

Thirdly, the decision to suspend needs to be reasonable in itself and needs to be based on an assessment of risk and that's the risk to a fair investigation and, as Michelle said, the people, evidence or property. Suspension should always be a last resort and employers should carefully consider any other alternatives, including redeployment, change duties, change of work location, those sorts of things. Don't let suspension drag on and maintain good communication with the employee throughout the whole thing, including being mindful of the employee's well-being as well as the investigation, review it regularly to make sure it's still necessary and reasonable and if it's not, then end it, bring the employee back in and take good care of the employee's well-being and respect their right to confidentiality as well. So that's all the key points about suspension. There is an article on the South East Employers website about the Simmons versus Croydon London Barrett Council case and the implications of that case more widely for suspension generally, if you want to read about this in a bit more detail. 

0:32:52 - Helen
Thank you as always, Michelle, Chelsea and Sarah. If you are a member of South East Employers and have any questions or queries related to suspension, you can always contact us at advice at seemp.co.uk, or for any other topics of HR advice, you can also visit the HR edit webpage at www.seemp.co.uk/theHRedit for previous episodes or any resources related to any of our episodes. Be sure to subscribe to the podcast on Apple podcast, Spotify or wherever you get your podcast, and visit the South East Employers website at www.seemp.co.uk for more information on how the South East Employers team can support you with anything HR related. Thank you for listening and see you next time. 

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