Can I suspend my employee? Six criteria you need to consider.

hand-in-the-till-cashWe run a very busy bar with usually 5 or 6 bar-persons on duty at any one time. We know that money is going missing from the till and we are pretty sure we know who is taking it on the basis of statements from the other staff. I know we need to properly investigate this before we take any disciplinary action, but can we just suspend the individual we suspect and keep him out of the bar until then?

The issue of suspension is one that often comes up in my HR casework, and it can be quite tricky coming to the correct decision. It is often a balance between the cost of losing an employee on full pay for a period and keeping the employee doing their job but possibly conducting further misconduct, covering their tracks or even coercing witnesses.

Firstly you should conduct a preliminary investigation to establish that there is prima facie evidence of the alleged misconduct. This doesn’t have to be conclusive but it should at least explain why you suspect the employee. In this case you can refer to the statements from other staff but don’t need to be more specific at this stage.

On the basis that there is reasonable evidence, then here are the criteria that you should use to come to a decision as to whether to suspend. You should suspend the employee and send them home if one or more of these criteria are met:

  1. there is a potential ongoing threat to the business e.g. through fraud, theft or cover-up
  2. employees or customers may be persuaded, coerced, threatened or intimidated into not being a witness
  3. it would be dangerous or a breach of the law to allow the employee to continue in their job
  4. it is not possible to properly investigate the allegations – for whatever reason –  if the employee remains at work
  5. relationships at work have broken down to such an extent that the employees concerned can no longer work together
  6. it is not possible to place the employee in another area of the business whilst the investigation is carried out

 

How do you go about suspending an employee?

Once it has become clear following a preliminary investigation that serious misconduct involving the employee has occurred and one or more of the above conditions have been met, then suspension is appropriate. The employee should be summoned immediately to a meeting with their manager who must inform them of the following:

  • The reason for suspension including what preliminary evidence there is to suggest they may be guilty of misconduct
  • Advise that suspension is not a disciplinary sanction and is designed to enable a rapid conclusion to the investigation process.
  • The process that will be followed i.e. what arrangements will be put in place for the investigation
  • That the employee must make themselves available for investigatory interviews when requested.
  • During this period of suspension the employee may not enter any Company premises without management permission or at the request of the manager undertaking the investigation. If the employee wishes to meet with their representative on Company premises then they must first receive the permission of their manager.
  • During the period of suspension the employee will receive normal pay, calculated in the same way as holiday pay, and any contractual benefits (so this should include any variable pay based on commission, shift work or overtime etc. that they would normally have received.)
  • That the investigation will be carried out as quickly as possible, and that the employee will be informed when the investigation is complete.
  • Inform the employee that he/she should not discuss this matter and/or any particulars relating to the allegation with anyone outside those involved in the investigative process.
  • Confirm that employee will be able to discuss matters with her/his chosen representative, and confirm also that management will keep all matters confidential and not share information with anyone not involved in the investigation process.
  • Check whether the employee has any questions.
  • Check that the employee feels well enough to get themselves home.
  • Confirm that the above points will be confirmed in writing to the employee.

You should ensure the period of suspension is kept under regular review. Suspension should not be seen as any form of punishment or disciplinary action, but as a means of assisting the investigation and it should be ended as quickly as reasonably possible. This is important as lingering suspension can be very de-moralising for the employee and can even lead to periods of stress and depression (which have in the past led to employees suing their employer for personal injury!) It is also a significant and unproductive cost to the business.

Extreme caution should be exercised when communicating an employees suspension to other employees, as any inference of “guilt” may prejudice any future disciplinary process. It could also cause the accused employee distress and may harm that employee’s reputation. If possible, the suspension should be kept confidential with the employee’s absence being put down to annual leave or personal reasons for example. However in this case it will probably be fairly obvious why the employee is not at work so honesty might just be the best policy here.

I often get asked whether you can suspend without pay in these sorts of circumstances as the employee is not actually working. Suspension without pay would effectively be a disciplinary sanction, and would be likely to cause a potential breach of contract if implemented prior to an investigation and disciplinary hearing. Therefore you should not suspend without pay in these circumstances.

 

6 comments to Can I suspend my employee? Six criteria you need to consider.

  • Steve

    Hi I’m aware of a colleague who has been suspended with pay and the company have failed to keep in touch and have then blamed the individual for non attendence to meetings where letters have not been sent then suspended that person without pay through then addmitting their mistake and recitifing it. Would in your opinion the colleague still have a claim because the company was out of process even though this was corrected as the intention was to punish.

    • Hi there

      It sounds like the company might have done enough to avoid any risk of them being in breach of contract if they have already rectified their mistake.

      It sounds like your colleague is in a difficult situation, but if they are currently being paid all they are contractually entitled to then it is unlikely that a court would deliver a finding of breach of contract.

      If the suspension continues for an unreasonable length of time, it is possible your colleague could resign and make a claim to an employment tribunal for constructive dismissal. This is however a fairly high risk strategy and also there is a fee payable by the employee now to bring a case to tribunal.

      All in all your colleague might be best placed to sit it out meantime and see what the company plan to do with him / her before making any potentially rash decisions.

  • Tanya Stephens

    Hello,

    If an employee was issued a period suspension without pay after being found guilty through a disciplinary hearing, should that ‘suspended’ employee be paid for a public holiday which falls within his/her period of suspension?

  • thomas

    Hello,

    My colleague are suspended for misconduc and have already à appointment with HR.I should receive the same letter as I did exactly the same mistake, but I didnt received anything yet.
    I am at the moment in holiday, do you think HR can not send on my private email this letter because I am in holiday ?

    its really important for me, im looking forward your answer.

    Kind regarda

    • Hi

      Yes I would recommend that you email HR directly and ask them what the situation is with regards your own personal situation. It may be that they are just awaiting your return from leave.

      I hope this is helpful

  • thomas

    Hi alex,

    Thanks for your answer. Your are unfortunately probably roght.
    Also, contact HR duringy holiday regarding that look like a proof of guilty, you dont think so ?

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