An employee has been suspended due to mistakes made, but was not informed of these errors until the meeting at which he was suspended. Should another course of action have been taken? Esther Smith and Matthew Whelan advise.
The question:
We have recently suspended one of our employees due to mistakes they have made over the last couple of months. An appraisal meeting was scheduled and held with the employee; and one of my HR colleagues attended (the employee was not aware HR were going to be present), where the employee was duly suspended.
I was away when this all happened, and my issue is that the errors had not previously been brought to the employee’s attention. The first he knew about it was when he attended the appraisal meeting. No PDP had been put in place. There have been no financial losses. The employee is often left on his own due to staff shortages and his line manager is frequently away on business. Were we right to suspend the employee or should another course of action have been taken?
Legal advice:
Esther Smith, partner, Thomas Eggar
I am not entirely sure from your question whether the employee was suspended from work to enable an investigation to be conducted, or whether the suspension itself was intended to be some form of penalty.
Ordinarily, an employer will suspend an employee as part of a disciplinary process to enable it to investigate any disciplinary issues or allegations against that employee.
Even with the contractual right to suspend, however, the employer should only use this right where they have good reason to do so. This will usually be where the employee’s presence in the workplace would somehow prevent a full and thorough investigation being conducted, or if the allegation was of such a severe nature that there was a real danger of risk to the business or other employees in allowing the employee to remain at work. Suspension should always be on full pay in these circumstances, and only for as long a period as is absolutely necessary.
In the case you describe, it sounds as if there may have been grounds to commence disciplinary proceedings as a result of this employee’s errors, but given that those errors have not previously been brought to the employee’s attention – and presumably are not that serious if they have occurred before and the employee has not been told and allowed to continue working – suspension does not appear an appropriate or proportionate response to the issues you are dealing with here.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Matthew Whelan, solicitor, Speechly Bircham
You need to think carefully before you suspend someone and I think you are right to question the decision. You should take account of whether the employee has a right to work (for example because their earnings are affected by not working). If they do, suspension is more difficult. You also need to look at what the contract says about suspension. Be careful that the suspension is not a knee-jerk reaction. You should only suspend an employee if there is a reasonable and proper cause to do so.
It is unusual to suspend an employee for performance reasons (it is usually for gross misconduct) so you would need to justify this by looking at the seriousness of the issues and whether there is a threat to the business by the employee working while you investigate/deal with this, otherwise the suspension does not seem to serve any purpose.
You mentioned there is no financial loss to the business so you would need to think about whether there was any other reason – perhaps some regulatory requirement. The other factors you mention would be taken into account and may work against the business when determining whether it was correct to suspend. You should also consider alternatives to suspension.
There is no requirement for you to follow a specific process prior to suspension if you suspend with full pay, although it is best to meet with the employee to hear what they have to say. If you want to suspend without pay this is much more risky. You should have, at the least, included a right to do so in the contract of employment and you need to follow the statutory procedures.
If you suspend an employee incorrectly or for too long, you will be in breach of their contract of employment (usually because it will destroy trust and confidence) and they will be able resign and claim constructive dismissal. You will not then be able to rely on promises they have made in the contract, such as post-termination restrictive covenants.
If there is no right to work and the suspension is short term and does not harm the employee then there is less risk involved. If, however, you subsequently dismiss the employee, they may argue that you have pre-judged the dismissal by unjustifiably suspending them.
From what you have said, I would question whether suspension is the correct course of action and how it benefits the business. I would recommend that you consider this further and take advice.
Matthew Whelan can be contacted at Matthew.Whelan@speechlys.com. For further information, please visit Speechly Bircham.
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