Everything You need to Know About Employee Suspension

Suspension. Some of you may not have heard this word since our school days, when the naughty kids would be kept home for a few days, as a way of discouraging their naughty behaviour. Is it the same in the workplace but the grown-up version? No, not really. Yes, it does involve an employee not coming to work, but the reasons why we might suspend someone are quite different and much more complex.

Suspending an employee is an effective way to protect a business, and other employees whilst you navigate an HR process. However, it is important to remember that suspension of employment is a delicate process to undertake. As you navigate the legalities of the suspension, you must also ensure that you do not ‘predetermine’ an outcome of the HR issue before it has been fully concluded.

What is a suspension?

Suspension is the ability to direct an employee not to attend or engage in work, or the workplace, as a precautionary measure whilst you undertake an HR process. This process could be either an investigation, or a disciplinary process.

 

Why do we suspend an employee?

You should only suspend an employee for one of these reasons:

  • There is a serious risk to health and safety – meaning the employee is at serious risk of hurting themselves, or others, should the employee continue to work while the process is being undertaken.
    (For example – The allegation is that the employee has physically threatened another person)

  • There is a serious risk to the company – meaning the company is at serious risk of a financial or commercial impact, should the employee continue to work while the process is being undertaken.
    (For example – The allegation is that the employee has forwarded commercially sensitive information to a competitor)

  • There is a serious risk to the integrity of the process – meaning the process is at serious risk of being interfered with, should the employee continue to work while the process is being undertaken.
    (For example – The allegation is that the employee has tried to influence others to mislead the company)

 

When can you suspend an employee?

You can suspend an employee at any stage in the HR process, provided that you are comfortable that you have an appropriate reason to do so. You may suspend the employee at the beginning of a process – or you can start a process and discover a risk later on, making a decision to suspend part-way through the process.

You must also have a clause in the employment agreement that gives you the right to suspend an employee. If you do not have a clause which provides this, then you should seek legal advice before taking any steps to suspend the employee.

Generally, a suspension will always be paid and there are very few legal ways to place an employee on unpaid suspension. You should also always seek legal advice if you believe you have grounds for an unpaid suspension.

 

How to suspend an employee

You should first carefully consider what is your reason for suspending the employee and if there is an alternative way to mitigate the risk without the need to suspend the employee.  If you are confident that suspension is the correct course of action, you would meet with the employee in person to let them know of your concerns and outline your proposal that suspension is appropriate. Ideally you will have prepared correspondence that outlines the situation which you can provide to the employee to take away, digest and obtain advice if they need it.

When you meet with the employee, you would:

  • Outline the concerns you have

  • Outline the formal process you will be taken to consider those concerns (either an investigation or a disciplinary process)

  • Advise the employee that the due to the nature of the allegations, you are now also proposing to suspend their employment until the conclusion of the process

  • Outline the appropriate clause within the employment agreement that provides you the ability to suspend employment.

  • Outline the reason why you believe the suspension is appropriate

  • Reiterate that suspension is a precautionary measure only, if the allegations against are not substantiated, the suspension will not affect the employees employment record

  • Clarify what suspension would look like:

    • When it would take effect (i.e. immediately);

    • The restrictions on the employee to attend the workplace or access work systems during suspension;

    • The restrictions on the employee to contact or discuss with other parties, particularly other team members;

    • How the employee will be compensated during the suspension period;

    • The expectations of the employee to be available during their normal hours of work to participate in the process.

  • Provide the employee with the ability to provide feedback on the suspension

You should always provide the employee the ability to give any feedback on why they may not believe the suspension to be appropriate given the circumstances. This should be a reasonable amount of time (we suggest at least 4 hours) so the employee can seek independent advice if they wish before the suspension is formally confirmed.  If the employee does provide feedback, you must genuinely consider their reasons before electing to proceed with the suspension.

 

Suspension is a powerful tool to protect your business during an HR process but, as you can see, it can be pretty tricky! It is always recommended that you obtain legal advice to protect yourself and your business before taking action. If you are looking to suspend an employee and need help understanding the requirements, feel free to get in touch! We’re always happy to help. 

 
Francesco Bravi