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What’s the answer? Suspension on full pay

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This week Helen Badger, employment law expert, Browne Jacobson and Nicholas Snowden, Senior Solicitor at Clarkslegal LLP present their ideas on the rules surrounding suspension on full pay.



The question:
My neighbour has been suspended from work on full pay whilst an issue is being investigated. He has not been told what the investigation is about or why he has been suspended. Can he insist on at least knowing the reason? I think this is reasonable.

Claire Lloyd

The answers:
Helen Badger, employment law expert, Browne Jacobson
piggy bank
Suspension on full pay is said to be a ‘neutral’ act, not implying guilt. However, this is rarely how a suspended employee is inclined to interpret the action.

An employer is certainly expected to provide suspended employees with an explanation of the grounds for suspension. Suspending an employee without telling him or her the reasons why they are being investigated, or why they have been suspended, is likely to be considered unreasonable conduct by an employment tribunal.

This could be the start of a slippery slope towards an unfair dismissal.

Companies used to play their cards close to their chest in the hope that they could catch an employee off-guard, but this is no longer considered acceptable. Employers are required by law to have good grounds for suspending an employee, and should be open with him or her about this. Knee-jerk suspensions as a reaction to allegations of misconduct can result in expensive litigation.

If your neighbour is unhappy about the fact or terms of suspension, or does not understand the reasoning behind it, the best way forward would be to invoke a grievance. Most companies have a grievance procedure, and your neighbour should ask to see this. Even if there is no formal procedure, employers have a statutory obligation to address any written grievance. Provided an employee puts their grievance in writing, the employer must deal with it, or risk facing claims at the Employment Tribunal, possibly including a claim for breach of statutory procedures.

Nicholas Snowden, Senior Solicitor at Clarkslegal LLP
Audit
I agree entirely. I can conceive of very few situations in which it would be appropriate not to reveal what is being investigated, for example, perhaps where the identity of a person complaining about the individual being investigated needs to be protected and it is felt that not providing the reason for the investigation might achieve this end.

However, in the vast majority of cases, it will neither be necessary, nor fair, not to provide the employee being investigated with the reason for the investigation which is taking place. By refusing to provide the reason, the employee is potentially put in a very uncomfortable and distressing position.

If he has not done so already, I would advise your neighbour to make his request to his employer again in writing. If this does not have the desired effect, he could choose to raise a formal grievance. If the grievance is heard but rejected, he can either accept the decision or he could consider resigning and claiming constructive unfair dismissal on the basis that his employer has breached the implied term of mutual trust and confidence.

However, constructive unfair dismissal is a difficult claim to win and this therefore represents a high-risk strategy. For instance, in this case, if the employer does have a good reason for not providing your neighbour with the reason for its investigation, the claim would be likely to fail.

For this reason, your neighbour should seek specific legal advice on his situation before taking such drastic action. In practice, the investigation might finish and all be revealed about the reason(s) for the investigation, before any grievance can be dealt with.

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HRZone highly recommends that any answers are taken as a starting point for guidance only.

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One Response

  1. suspension
    Claire
    Much will depend on the environment (eg share trading) the position and most importantly the timescale. As Nicholas implies if they get back to him soon then events will overtake. There might also be an issue about how long the contract provides for paid supension. It is usually one week but if drafted well will have some flexibility.
    It must be an awful predicament for your neighbour whether innocent or guilty but there are many reasons for suspending people and one of those comes within the invetsigation heading. In my experience people will often not talk until a boss/harasser/villain is off the premises and they can be reassured. Another major reason is to stop the individual/ his colleagues/accomplices from tampering with or finding the evidence.
    Timescale and support are crucial as implied in the House of lords case of Gogay v Herts CC which incidentaly is the case which really opened the floodgates in terms of personal injury due to badly handled suspension/other action.
    Peter

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