There is no single path to conducting better appraisals but the following six steps should help you make the meetings more interactive and productive: In the past is has been thought to be best practice to always suspend an employee accused of a misconduct, particularly if the allegation was one of gross misconduct.  However, there have been a number of employment tribunal cases recently which have questioned the reasonableness of this action.  We therefore thought we should look at it in more detail here.

It is generally thought only appropriate nowadays to consider suspending an employee where there is an allegation of potential gross misconduct.  Suspending for other forms of misconduct is now considered as inappropriate in most circumstances. After all it would be unreasonable to suspend someone for just turning up late on a couple of mornings.

Suspension itself should not be an automatic reaction to any situation.  There should be a very good reason why you believe it is appropriate to suspend the employee, rather than let them return to work. Previously it was thought that suspending an employee helped the employer to carry out an investigation unhindered by the presence of the accused employee. Current thinking would suggest resisting suspension unless it is a particularly serious misdemeanour or there are risks associated with allowing the employees to carry on working. For instance, suspension might be the only option if:

[a] the accused is likely to interfere with witnesses
[b] the accused is likely to tamper with evidence
[c] the accused is likely to retaliate against the complainant, perhaps with violence
[d] it is harassment and particularly a sexual harassment claim  
[e] there is good reason to believe that the alleged offence may be repeated if the accused is allowed access to the premises.
[f] there is good reason to believe that there is a real risk to the Company’s property, reputation, or IT systems, etc.

Before reaching for the red card think about the consequences for the Company, the remaining employees and the employee concerned.  Remember, there are always two sides to any dispute and unless you are on very sure ground it is best to reserve judgement until an investigation has been completed.

In a case of theft or fraud, you may consider charging the accused criminally to prevent them absconding. However, in a recent Court of Appeal case the judge was critical of the employer notifying the police. The Court called such a step as a “defensive management response” which does not take into account the interests of the employee. Being under the cloud of possible criminal proceedings, the Court said, is a very heavy burden for an employee to face and employers should not subject employees to that burden without careful consideration and a genuine and reasonable belief that the case, if established, might justify criminal investigations.

Remember that suspension may only be without loss of benefits to the employee. Suspension without pay may only be imposed as a disciplinary sanction, and then usually only as an alternative to dismissal and with the written agreement of the employee.

Giving modern thinking, it might be worth giving some thought as to how you would approach a future case where suspension might have been the previous practice. For instance, is there a practical way of carrying out the investigation without having to remove someone from the workplace, perhaps by moving the employee to another part of the business.  This would allow you to undertake an investigation while keeping the employee at work, rather than being paid to stay at home.

Companies that suspend employees unreasonably may find tribunals conclude that there has been a breach of mutual trust and confidence; that can result in claims from the employee for constructive dismissal; breach of contract and for financial losses i.e. if there has been damage to a person’s professional reputation.

In summary, employers need to consider all issues before taking rash actions. How would suspending and, perhaps, reporting an employee to the police, look in the cold light of a tribunal. Would it be considered a reasonable action, particularly if the employee is subsequently cleared of the charges.  Employers should consider how the employee would feel at being excluded from work before an investigation and bear in mind that, whatever the outcome, suspicions are likely to “linger”.  Conversely, employers should consider the risks of allowing the employee to continue at work – is there likely to be a repeat of the alleged misconduct?

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We can help you hire and retain the best employees, manage your employees more successfully, and improve employee motivation. Whatever your HR outsourcing needs, In2HR can assist any company within the Thames Valley areas, including Berkshire, Buckinghamshire, Oxon and Surrey. So why not contact us today.