Posted by Richard Woodman, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Gearing up to Suspend?
In the unlikely event of your key employee throwing a punch at one of his colleagues you may wish to suspend the employee who is being investigated.
Jeremy Clarkson’s latest alleged indiscretion gives Employers food….. (especially if the catering truck fails to show) for thought on what action to take when an employee “blows a gasket” at work.
The BBC, as Clarkson’s employer has to tread ( cross ply or radial) carefully as there are traps for the unwary employer who fails to exercise due care and attention.
Suspension may be appropriate, for example, where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work (for example because they may destroy evidence or attempt to influence witnesses). It may also be appropriate where relationships at work have broken down However, in such cases each individual is likely to have their own view of who is to blame and the employer should be careful not to give the impression of having pre-judged this issue.
Employees need to be informed of the fact that they have been placed on suspension as soon as possible. Any conversation to this effect should be followed up in writing. The letter should:
Make it clear that the employee is suspended and set out how long it is anticipated the employee will be suspended for.
- Explain the employee’s rights and obligations during the period of suspension.
- State that the employment contract continues but that the employee is not to report to work and must not contact colleagues or clients.
- Notify the employee of a point of contact (such as a Human Resources manager) during their period of suspension..
The period of suspension should be as short as possible and the suspension decision should be kept under regular review. Particular care should be taken where the matter concerns possible criminal allegations as the employer will wish to avoid keeping the employee suspended on full pay for months or even years pending a court hearing.
Suspension should not be seen by the employer at this stage as some form of punishment for the employee, but as a means of carrying out an investigation unhindered as quickly as possible. Inevitably, however, an employee will often view the suspension as a punishment and, unless handled very sensitively, it may send a strong signal out to an employee that the outcome of any disciplinary hearing is a forgone conclusion.
Suspension is a serious step and thought needs to be given as to whether it can be avoided. It may, for example, be possible to place the employee in another area of the business while the investigation is carried out.
A “knee-jerk” suspension where the employer fails to consider whether it could be avoided may result in a finding that there had been a breach of mutual trust and confidence by the employer:
Unless there is a clear contractual right to do so, an employer will not be entitled to suspend without pay, therefore, while the employee is suspended, they should continue receiving their pay and normal benefits.
In addition, in some circumstances (particularly where a job is unusual or unique) a long period of suspension may be regarded as preventing the exercise and maintenance of skills properly necessary for the performance of an employee’s duties. For example, a need to maintain a high public profile and to be seen to be active, in a particular industry.
It pays to employ the right employment solicitor