Suspension and individuals accused of gross misconduct - what are the rules?

With the BBC coming under scrutiny recently due to not naming the TV presenter suspended for potential misconduct, many are wondering what action is suitable for an organisation to take during an investigation and how disciplinary allegations should be dealt with.

Suspension

Where misconduct is suspected, an employer can take the decision to suspend an employee, usually on full pay (unless there is a contractual provision to the contrary), whilst an investigation into the allegations takes place. The decision to suspend should be approached with caution, should not be a knee-jerk reaction and is likely to only be considered appropriate if, for example, there is a threat to the business, or the individual is likely to interfere with witnesses or tamper with evidence if they remain in the place of work whilst an investigation is ongoing.

Any period of suspension should be kept as short as possible with the suspension being kept under regular review and it should be made clear to the individual suspended that suspension is not a disciplinary sanction.

An employer will need to consider whether the contract allows for suspension and make sure to act in accordance with their own policies and procedures, treating employees consistently. They should also consider alternatives to suspension and, if there are none, be satisfied that there are reasonable grounds for the suspension.

Confidentiality

Any investigation should be kept confidential and not discussed with anyone other than those necessary to carry out a full and thorough investigation. In terms of the BBC matter, whether to disclose the name of the individual to the wider public was to be considered in relation to the individual’s right to privacy under Human Rights legislation and the likelihood of any subsequent potential defamation claim.

If an issue is especially sensitive in nature, it might be more appropriate to carry out any meetings away from the workplace.

Next steps

Once a thorough investigation has taken place, an employer will then need to decide whether it is necessary to proceed to invite the individual to a formal disciplinary hearing, which could result in a sanction for the individual. During the disciplinary hearing procedure there are a number of factors an employer will need to consider in order to ensure that they comply with legislation, and Acas guidelines, to mitigate the risk of a future claim.

Risks

In respect of employment legislation, a flawed investigation and/or disciplinary process could give grounds for an employee with over 2 years’ service to assert that there has been a breakdown in their trust and confidence in the business and subsequently resign and pursue a claim for constructive unfair dismissal.  If an employee with over 2 years’ service is dismissed, a flawed investigation/process could give rise to an unfair dismissal claim. Self-employed individuals, employees with less than 2 years’ service and workers do not have a right to pursue these claims.

If the individual has a disability and are treated less favourably because of this during the suspension and investigation, or if the organisation does not consider any reasonable adjustments, a claim for discrimination under the Equality Act could also be pursued. This claim is open to any individual engaged by the organisation to pursue.

Advice

If you require legal advice on the content of this article, speak to a member of our employment team on 01689 887 887