The Advisory, Conciliation, and Arbitration Service (ACAS) recently published new advice on how to handle employee suspensions. Suspending an employee might be necessary during a disciplinary or grievance investigation, or for the purposes of safeguarding the health and safety of the individual concerned. Since this is a relatively common practice, most properly drafted employment contracts contain basic provisions for employee suspensions, however, they often tend to be deliberately sparse.
This has largely been resolved by the recently published ACAS guidance which effectively provides some clarity as to what is and is not acceptable during any period of suspension.
The ACAS Guidance provides a useful starting point when it comes to deciding whether to suspend someone, stressing that the employer should consider each situation carefully before deciding whether a suspension is necessary. It also highlights the importance of considering the wellbeing and mental health of anyone who is being considered for suspension. An employee should only be suspended if there is no other option, and a plan should be implemented to ensure that the individual is adequately supported during the suspension period.
A copy of the guidance can be accessed here: https://www.acas.org.uk/suspension-during-an-investigation
Although the advice is non-binding, it potentially acts as a useful resource for employers faced with this type of situation.
What aspects of employee suspension does the ACAS guidance cover?
The advice is split into four parts:
- Deciding whether to suspend someone;
- The process for suspending someone;
- Supporting an employee’s mental health during suspension; and
- Pay and holiday during suspension.
The first part, which concerns guidance regarding the decision about whether to suspend someone, provides multiple considerations which ought to be properly considered before going ahead with the suspension.
The second part, which describes the process for suspending someone, provides valuable guidance when it comes to communicating the suspension to the employee.
The third part of the guidance defines the type of support which should be given to a suspended employee, particularly in relation to safeguarding the mental health of the individual.
The final part highlights the importance of maintaining normal pay and benefits during any period of suspension, even where punitive measures are contained within the relevant contract.
What guidance does ACAS provide on the employee suspension process?
The ACAS guidance is particularly useful for employers as it effectively describes what the process for suspending someone should look like. It emphasises the importance of:
- Making clear that the suspension does not mean the employers decided that the person has done something wrong;
- Making sure the suspension period is as brief as possible;
- Keeping in touch and supporting the mental health and wellbeing of the suspended person; and
- Carrying out a fair investigation, in line with the ACAS Code of Practice on disciplinary and grievance procedures.
What guidance does ACAS provide in relation to supporting the mental health of a suspended employee?
The ACAS Guidance provides the following helpful advice when it comes to supporting an employee’s mental health during a suspension period. In particular, it suggests that employers can help prevent mental health issues from arising or getting worse by:
- Communicating clearly with the suspended employee throughout the process;
- Making clear that the suspension does not mean a decision has been made that the employee has done something wrong;
- Assuring the suspended employee that his or her viewpoint will be listened to and taken into consideration before any decisions are made;
- Keeping in regular contact with the suspended employee throughout the suspension period
- Updating the suspended employee about the investigation and when it is likely to end;
- Making sure the suspension only lasts for as long as needed; and
- Ensuring that the suspended employee knows who to contact in relation to any concerns.
The ACAS Guidance makes clear that the suspended employees should continue to receive:
- Their usual pay; and
- Any benefits in their contract, for example, a bonus or gym membership.
If an employer reduces or stops someone’s pay during the suspension, this could lead to legal action. This could happen even if there’s something in the contract that allows it. If you have been affected by any of these issues, why not get in touch to see how we can help?
Mark Lafferty is a senior employment law solicitor at DPH Legal. Mark acts in the employment tribunal for respondents and claimants alike and also has extensive litigation experience in the Employment Appeals Tribunal, County Court, High Court and Court of Appeal. He has experience in dealing with TUPE, Unfair Dismissals and discrimination. In the past, Mark has held lecturing posts at Warwick University and the city of Oxford college. Mark has a long-standing membership within the Employment Lawyers Association and The Law Society. To contact Mark, visit the Contact Us page. For media enquiries: info@dphlegal.com