New ACAS Guidance – Suspension

Courtesy of Author – Jamie Meechan of MacRoberts Solicitors from their employment law team who posted the below:

ACAS has published new guidance in relation to suspending employees from work. The main points are:

  • An employer should usually only consider suspension from work if there is:
  • a serious allegation of misconduct;
  • medical grounds to suspend; or
  • a workplace risk to an employee who is a new or expectant mother.
  • Suspension should never be an automatic approach for an employer when dealing with a potential disciplinary matter. Most disciplinary procedures will not require suspension.
  • There should be no assumption of guilt and suspension must not be used as a disciplinary sanction.
  • Confidentiality is important – the suspension and the reason for it should be kept confidential. It may be necessary to discuss the employee would like their absence from the workplace explained.
  • The Guidance outlines the basic information that should be included in a suspension letter to the employee.
  • The employee should receive full pay during any period of suspension.
  • The suspension should only be for as long as it is still necessary.
    Keeping in touch with the employee during a period of suspension is important and the employee should be supported during this time (including have a point of contact at the workplace to discuss any concerns they may have).
  • A return to work meeting is recommended for the employee’s first day back after suspension.
  • There is also new guidance in respect of medical grounds suspension and suspension where there is a risk to a new or expectant mother.

The full guidance can be found here. The guidance is not binding, but it is recommended that employers follow it.

The ACAS Code of Practice on Discipline and Grievance (which must be followed when dealing with a disciplinary situation) says that “where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.”
Nevertheless, employers should suspend with caution – suspending an employee can be a breach of contract (particularly if there is no contractual right to suspend) and it can be a breach of the implied term of mutual trust and confidence. There have been various cases in which an employee has successfully argued that they were constructively unfairly dismissed because of an employer’s ‘knee-jerk’ reaction to suspend, particularly in roles where reputation is important.
Before suspending – consider the ACAS Guidance and take advice. We would recommend that employers consider:

  • Whether suspension is necessary (for example, if the employee could tamper with evidence/influence witnesses, there is a risk to other employees or property); and
  • Whether there are any alternatives to suspension (for example, the ACAS guidance suggests working in a different department, working from home, varying working hours and/or duties).