Question: Can we suspend an employee who we suspect may be guilty of bullying? Other employees have come forward as witnesses to the alleged bullying and some of them are refusing to work with the employee in question. What are our options?
Answer: We are often asked by employers whether they can suspend an employee who they believe may have committed an act or acts of misconduct. The important thing for you to remember in this situation is that suspension should be used as a last resort, and should not be a knee-jerk reaction.
You should carry out a reasonable investigation into the allegations before deciding whether to progress down the disciplinary route, and sometimes it is necessary to consider whether the employee should be out of the workplace while that investigation takes place. When considering whether to suspend an employee, you should consider whether there are good reasons to justify suspension, for example, do you believe that the employee will interfere with the investigation into the allegations or interfere with potential witnesses? Will the employee be a threat to the business or to other employees?
Bullying is obviously a serious matter, but the outcome will depend on the evidence. The act of suspension itself should not be used as a form of punishment or disciplinary sanction against an employee. The risk of suspending an employee is that they could argue the suspension is unreasonable and as such, that you have breached the implied term of mutual trust and confidence. The employee could resign and bring a claim for constructive dismissal on that basis. It is therefore important, if you decide to place an employee on suspension, that the suspension lasts only for as long as is necessary to carry out the investigation, that the employee is kept informed of when the suspension is likely to end and that the employee continues to receive their full pay whilst on suspension.
It is best to be cautious about suspending an employee where relationships in the workplace have broken down, to avoid accusations of having pre-judged the situation or of ‘taking sides’. Before placing an employee on suspension, it is worth considering alternatives, for example, could the employee work elsewhere within the business (or perhaps work from home?) whilst the matter is being investigated?
We always recommend taking legal advice before suspending, as it can create legal issues. A quick call to us could save you hours of work in the long run!
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]entlaw.co.uk).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.