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By Bethany Wheeler-Fowler, Giles Tidy
27 Sep 2022 | 1 minute read
In September 2022 Acas issued new guidance for employers on suspension.
This covers both suspensions pending an investigation and medical/pregnancy suspension.
In the context of disciplinary processes, suspension can often be carried out in a knee-jerk fashion by employers and/or disputed as being necessary by employees, so it would be sensible to consider the updated guidance from Acas on when and how you should consider suspension and revisit any policies and practices that you have around suspension.
It is strongly advised that employers carefully assess each situation to decide whether suspension is reasonable. It won't always be necessary or reasonable. If it is not reasonable, you risk claims for discrimination and/or (where the employee has two years' service) constructive/unfair dismissal.
Acas clarifies that suspension should only be considered where you reasonably think it is necessary to protect:
If they would, do that instead of suspending.
For instance, is it possible to change the employees shifts or work location, their customers, their specific tasks and/or work with certain systems or tools to protect the concern you are looking to address through suspension?
You should think about:
If deciding between moving two people, any actions and suspensions must be fair and reasonable –although the guidance does emphasise that you should not move someone who has made a complaint as this could give rise to claims for victimisation.
Acas emphasises that you should also make suspension as brief as possible. Having an employee suspended for a lengthy period of time always increases the risk of a claim for constructive dismissal.
In terms of what to communicate to the employees being suspended, Acas recommends you tell them clearly:
You and the employee are advised to keep the suspension confidential – and, with this in mind, to discuss what will be communicated about the employee's absence, and to who.
During suspension, you are encouraged to keep in touch with the employee and support their mental health and wellbeing in order to meet your legal duty of care towards your employee. You should, therefore, provide the suspended employee with details on what support is available to them and give them a contact person in your organisation.
Whilst suspended the suspended person ought to receive their usual pay and employment benefits. Don’t withdraw benefits, such as company cars, where the employee usually has the right to make personal use of this.
If you have any particular queries, contact us to see how our specialist team of employment lawyers can support you.
