‘Box, box’: Best practice when considering the suspension of an employee

The fast-paced thrills of Formula 1 returned to our screens at the start of this month. However, fans of the sport have been engrossed not by any excitement on track, but by developments off-track in Red Bull Racing’s investigation into the allegations of misconduct made against team principal, Christian Horner.

These allegations were understood to be of ‘inappropriate conduct’ and were made by a more junior, female colleague of Mr Horner’s. On 28 February, Red Bull GmbH confirmed that the outcome of their investigation was to dismiss the grievance raised by the employee against Mr Horner. Then, on 7 March, it was revealed that the employee had been suspended. This brought into sharp focus the question of when an employer is entitled to suspend an employee.

Suspending an employee

An employer’s right to suspend an employee should, preferably, be expressly set out in the contract of employment. However, even if an employer has an express contractual right to suspend the employee, this should only be exercised on reasonable grounds, normally with pay, and for no longer than is necessary.

The employer should not take a 0-100mph approach, meaning suspension should not be automatic or a ‘knee-jerk’ reaction to an allegation of wrongdoing. An employer must also have identified that there is reasonable and proper cause for the suspension (e.g. to safeguard the integrity of the investigation or protect other employees) but in making this determination, should consider if there are alternatives to do so (e.g. temporarily moving the employee to another location or restricting their IT access).

If an employer does deem it necessary to suspend, their basis for doing so should be explained to the employee. The Acas Code of Practice on disciplinary and grievance procedures sets out that employers should explain that the suspension does not constitute a disciplinary sanction, nor is it an assumption of guilt. It is important that suspension is continually kept under review and is for no longer than is necessary.

The Acas Guide on Discipline and Grievances at Work importantly highlights the psychological impact of suspension – that it can be distressing for an employee and can leave them feeling devalued and demotivated. It advises that employers should encourage the employee to access immediate support upon being informed they are suspended and help them to do so (e.g. by contacting a family member). Acas also recommends keeping the suspension confidential or on a need-to-know basis wherever possible, with the employer and suspended employee agreeing what they will divulge to others.

What if these steps aren’t followed?

If an employer suspends an employee either without a contractual right to do so or where they don’t have reasonable and proper cause for that suspension, an employee may have a claim for breach of contract or constructive dismissal. This would be on the basis that the employer’s decision to suspend was a serious breach of their contract of employment – either explicitly because the employer does not have the contractual right to suspend, or because the reason for, and/or manner of the suspension constitutes a breach of the implied term of trust and confidence between employer and employee.

If it is found that the employer has also failed to follow the Acas Code, any compensation awarded to the employee can be uplifted by up to 25%.

If you require any advice in relation to disciplinary investigations or suspension, please get in touch with our specialist Employment Team.