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Employee Suspension and Flawed Procedure

Suspending an employee most likely occurs in two instances where:

  1. The employee has been through a disciplinary process and the sanction imposed has been suspension without pay for a period of time.
  2. The employee has allegedly committed an act of gross misconduct and is suspended with pay pending the outcome of the disciplinary investigation.

Suspension as a Sanction:

For an employee to be suspended without pay as part of a sanction in a disciplinary process the disciplinary procedure must allow for this to be one of the sanctions imposed. If there is no suspension listed as a sanction than the employer cannot suspend an employee without pay as an outcome of a disciplinary process.

It is therefore essential, that the disciplinary officer is fully aware of the disciplinary sanctions available to them prior to making any decision to suspend without pay.

If suspension without pay is available as a disciplinary sanction, a suspension notice should be given to the employee that outlines the length of the suspension, reason for the suspension and consequences for further infractions. The employee must also be given the option to appeal the decision.

Suspending an Employee as Part of a Disciplinary Process:

Suspension with pay should occur if the employee has potentially committed an act of Gross Misconduct.  In cases of alleged Gross Misconducted the employee should be suspended with pay as soon as possible.  The reason for doing this is that the Employment Appeals Tribunal (EAT) has been strong in their stance that allowing the employee to continue to work, while serious gross misconduct allegations are being investigated will undermine the “gross” nature of the employee’s actions.

In effect, if an employer suspects an employee of gross misconduct and the employer wants to dismiss the employee for their actions then the employee should be suspended on pay pending the outcome of the disciplinary investigation.

If suspension has not occurred during the investigation stage of the disciplinary process and the employee is ultimately dismissed the argument is that the employer allowed the employee to continue to work throughout this process and therefore the employee’s act of gross misconduct is lessened. Ultimately, an act of gross misconduct is a breakdown of trust between the employee and the employer, therefore, how can an employer argue that the trust is gone if they allow an employee to continue to work for the duration of the disciplinary process.

As previously stated the general rule is that if an employee is suspected of gross misconduct they should be suspended with pay as soon as possible. Employers understandably, struggle in accepting the pay element on the basis that the employee has allegedly committed gross misconduct and on involuntary paid leave while they await the actual disciplinary process to be completed.  It is important that employers remember that suspension is a precautionary measure while the matter is been investigated.

If the employer was to suspend without pay then the employee would be considered to have been punished for an act that has not yet been proven. This in itself could be seen as a disciplinary sanction and interpreted that there is a predetermined decision of the employee’s guilt prior to the disciplinary process having been completed.

Essentially, this could result in an employee being successful in any subsequent Unfair Dismissal claims on the basis that the decision to dismiss was predetermined and the right of natural justice removed.

The employee should be made aware that suspension is not a disciplinary sanction but a precautionary measure to all for the investigation to draw to a fair and transparent conclusion.

When suspending an employee on pay pending the outcome of an investigation this should be communicate to the employee in writing stating the purpose of the suspension and confirming that this is a precautionary measure and not a sanction.

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