ACAS have recently issued some important revised guidance on suspensions. It is primarily aimed at ‘business owners’ although it is applicable for most employers and contains some advice for employees.
The new guidance helpfully incorporates the principles that should govern any decision to suspend and the correct process before doing so. Should any suspension come to be reviewed by a court or tribunal, it is helpful for an employer to be able to show they had considered it and sought to comply with its terms.
The guidance looks at five major steps in the decision-making process:
- Deciding whether to suspend someone;
- Investigating the situation;
- Considering whether suspension is needed;
- Alternatives to suspension; and
- Making the decision
What is striking is the extent to which the guide urges the employer to take the decision to suspend very seriously and the emphasis on the impact suspension can have on individuals’ mental health and wellbeing. You should also consider the potential impact on the individual’s professional reputation and standing. There are numerous references to an employer having to consider each situation “carefully” advising suspension will “only be needed in some situations.”
It advises employers not to “use suspension automatically” and that “it's usually best to avoid suspension if possible.” The guidance stresses the effect that suspension can have on an employee, advising that it can be “stressful” and that the employer should “consider the wellbeing and mental health of anyone they’re thinking of suspending.” It says they should only suspend if there is “no other option.” Ultimately, if the employer does decide to suspend, they should “plan what support they’ll provide” to the person concerned.
The guidance appears designed to redress the balance away from a ‘knee jerk’ move to suspend. In the past, a suspension may have been seen to be, at least on the face of it, a ‘neutral act’. However, it has been recognised that in practical terms that is simply not the case. The reality is that suspension can have a serious effect not only on an individual's mental health and work but possibly on their future career as well.
This new guidance from ACAS marks something of a step change in the approach that is likely to be taken in the future in relation to suspension cases. It most certainly does not mean that employers are going to be prevented from suspending employees when carrying out an investigation. Often that is the correct course; for example, to ensure evidence is preserved, witnesses are not interfered with, or that there is not a serious risk to the business and/or its employees for the person to remain at work. But it does mean that the suspension process should be comprehensive and carefully considered.
It is advisable for employers to record in writing the steps they have taken in deciding whether to suspend an individual, including the factors they have considered, perhaps with explicit reference to the ACAS guidance. This would provide a helpful record of the fact that the guidance has been considered and the decision to suspend was not taken lightly if it were ever subject to challenge.
Regular reviews of suspended employees should always be taken to ensure that the suspension remains appropriate. During an investigation, information may come to light which means the suspension is no longer appropriate even though the investigation must continue. Suspension can of course also arise during a disciplinary investigation and become necessary when it was not originally thought as such.
Employers may additionally want to indicate what steps they have taken to safeguard the wellbeing of the suspended individual. This could be assigning a neutral person as a method of contact and support, offering counselling, or an Employee Assistance Programme.
This would not only further indicate compliance with the guidance but would also strengthen the employer’s position that it continued to comply with the implied duty of maintaining trust and confidence with the suspended person.
The full ACAS guidance can be found here
and if you need any additional support, please get in touch with us.
