If an employee has done something which could amount to misconduct, then the last thing you want is for that employee to attempt to wriggle off the hook because you have made a procedural mistake by suspending the employee from work. A mistake like that could put the employee on the front foot and could even end up with you having to fight a personal grievance when it is the employee at fault.

Strange as this may seem, this is a common occurrence in misconduct situations. Therefore, make sure you know when you can and when you cannot suspend, and then go through the process correctly.

When can you suspend?

Suspension from employment is generally only reserved for misconduct cases. So if you are dealing with a performance issue then the option of suspension is not available unless the allegation is one of serious negligence and the employee’s continued presence at work could pose a business risk. These situations are pretty rare, so the rule of thumb is to reserve suspensions only to misconduct cases.

In terms of the misconduct required, it would normally have to be serious enough to warrant suspension. The purpose of a suspension is to protect your business whilst an investigation into the misconduct is carried out. Therefore, the continued presence of the employee at work should pose a business risk. For example, if the allegation was theft, the risk could be that the employee would continue stealing. On the other hand, turning up late for work (even if repeated on numerous occasions) would not pose a business risk so suspension would be inappropriate. However, the extent of the ability to suspend can often be dictated by the employment agreement.

Does your employment agreement allow for it?

If you have decided that suspension may be appropriate then the next step is to check your employment agreement to see whether there is a clause which allows for suspension. The clause may stipulate when a suspension will be allowed so it is important that the individual situation matches the parameters of the clause. If you go beyond the parameters of the clause, or you don’t have a clause at all, you could expose yourself to a grievance. By and large however, it is not the ability to suspend that often causes grievances but how the suspension is implemented.

How to implement the suspension

The law requires that before you suspend any employee you must first consult with them. That means giving the employee the opportunity to give their feedback on whether suspension is appropriate. The point to remember here is that being suspended from work can be detrimental to the employee for two reasons:

1. It inhibits the employee access to documents which may prove their innocence;
2. Suspension carries with it a stigma which may indicate that the employee has been found guilty already.

On the other side of the coin, whilst on suspension an employee remains on full pay and has plenty of time to seek legal advice without having to worry about doing their job under the stress of the disciplinary process. For this reason, my experience is that many employees do not object to a suspension. As a result, there is opportunity to get agreement over the suspension rather than having to impose it.

How to get an employee’s agreement not to come to work

Whenever a suspension situation arises, my advice is to explain the allegations to the employee and emphasise the seriousness of the allegations. It would be appropriate to say that one outcome of the disciplinary process could be dismissal. As a result, emphasise the need for the employee to obtain legal advice and indicate that you would be happy for the employee to take time off prior to the disciplinary meeting on full pay to obtain that advice. If the employee agrees (which is likely) then you have satisfied your obligations to consult.

What if the employee disagrees?

If the employee doesn’t accept your offer to take time off prior to the disciplinary meeting, then you need to explain that you are contemplating suspending the employee because the allegations are serious. If the employee continues to dispute your right to do so, then you will need to be happy in your own mind that:

1. The allegations are serious;
2. The employee imposes a risk to the business.

Try enquiring of the employee why he or she does not want to take the time off work. If you know the objection, you may be able to overcome the objection and still suspend the employee. For example, if the employee is concerned about access to documents then you can make those documents available whilst the employee is still on suspension. It will then be difficult for the employee to complain and raise a grievance.

The effect of the personal grievance

Forgetting to carry out these steps could put you on the back foot in the disciplinary meeting, particularly if the employee takes legal advice and raises a personal grievance on the grounds that the disciplinary process has already been “tainted with unfairness”. The employee may then argue that the outcome of the disciplinary meeting is predetermined and all of a sudden you are exposed to a personal grievance. This can be particularly frustrating if you know that the employee is at fault. So, follow these simple steps to avoid the grievance:

1. Assess the seriousness of the allegations and the business risk posed by the employee;
2. Check the employment agreement;
3. Consult with the employee or get the employee’s agreement to suspend.