A Guide To Suspending And Dismissing An Employee

Few workplace situations are more challenging than deciding whether to suspend or dismiss an employee. Employers must balance protecting the business, conducting a fair investigation, and complying with employment law obligations.

Making the wrong decision, or following an unfair process, can expose a business to claims for unfair dismissal, discrimination, breach of contract, or constructive dismissal.

This guide explains when suspension may be appropriate, how to manage a fair disciplinary process, and when dismissal may be justified.

Understanding Suspension

What is Suspension?

Suspension is a temporary measure that removes an employee from the workplace while an investigation is carried out.

Importantly, suspension is not a disciplinary sanction and should not be treated as evidence that the employee has done anything wrong.

It is simply a neutral act designed to allow an investigation to take place fairly and safely.

When Might Suspension Be Appropriate?

Suspension may be appropriate where:

• Serious misconduct is alleged
• There is a risk that evidence could be destroyed
• Witnesses may be influenced or intimidated
• The employee’s continued presence could disrupt the investigation
• There are health and safety concerns
• There is a risk to customers, clients, colleagues or the business
• Relationships have broken down to the extent that a fair investigation is impossible

Examples may include:

• Allegations of theft or fraud
• Serious breaches of company policy
• Violence or threats
• Harassment or discrimination complaints
• Serious safeguarding concerns
• Significant breaches of confidentiality

Is Suspension Always Necessary?

No.

Employers should always consider whether there are less severe alternatives available, such as:

• Temporary redeployment
• Working from home
• Adjusted duties
• Changing reporting lines
• Restricting access to certain systems

Employment tribunals increasingly expect employers to justify why suspension was necessary.

Should Suspension Be Paid?

In most cases, yes.

Unless a contract specifically allows otherwise, suspension should normally be on full pay and benefits.

Unpaid suspension could potentially amount to a breach of contract or unlawful deduction from wages.

How Long Should Suspension Last?

Suspension should be:

• Kept as short as possible
• Reviewed regularly
• Lifted as soon as it is no longer necessary

Employers should avoid allowing suspension to continue indefinitely while investigations drift.

Regular communication should be maintained with the employee throughout the process.

Conducting a Fair Investigation

Before considering disciplinary action, employers should establish the facts.

A thorough investigation helps ensure that decisions are reasonable and defensible.

An investigation may involve:

• Reviewing documents and emails
• Interviewing witnesses
• Obtaining statements
• Reviewing CCTV or electronic records
• Meeting with the employee concerned

The purpose is to gather evidence, not to determine guilt.

If the investigation identifies a potential disciplinary issue, a formal disciplinary process may be appropriate.

Employers should follow:

• Their own disciplinary policy
• The principles of the ACAS Code of Practice
• Any contractual procedures

Failure to follow a fair procedure can increase the risk of legal claims.

When Can an Employee Be Dismissed?

Dismissal should usually be a last resort.

An employer must generally have:

• A fair reason for dismissal; and
• Followed a fair procedure

Potentially fair reasons for dismissal include:

• Conduct
  • Where an employee has committed misconduct or gross misconduct.
• Capability
  • Where an employee is unable to perform their role adequately despite support and opportunities to improve.
• Redundancy
  • Where the role is no longer required.
• Statutory Restriction
  • Where continuing employment would break the law.
• Some Other Substantial Reason (SOSR)
  • A catch-all category covering certain business-related reasons.

What is Gross Misconduct?

Gross misconduct refers to behaviour so serious that it may justify summary dismissal (dismissal without notice).

Examples may include:

• Theft
• Fraud
• Physical violence
• Serious bullying or harassment
• Serious breaches of health and safety
• Gross insubordination
• Serious breaches of confidentiality

Employers should still investigate thoroughly before dismissing for gross misconduct.

Can an Employee Be Dismissed During Probation?

Generally, yes.

Probationary employees typically have fewer protections against unfair dismissal.

However, employers should still:

• Follow any contractual procedures
• Act fairly
• Avoid discriminatory decisions
• Give any required notice

Common Mistakes Employers Make

Employers should avoid:

• Suspending automatically without considering alternatives
• Treating suspension as a punishment
• Failing to investigate properly
• Relying on assumptions rather than evidence
• Predetermining the outcome
• Ignoring mitigating circumstances
• Failing to follow company procedures
• Dismissing too quickly
• Inconsistent treatment of employees
• Failing to offer an appeal

Settlement Agreements as an Alternative

In some situations, employers may consider a settlement agreement as an alternative to a lengthy disciplinary process.

A settlement agreement can:

• End employment on agreed terms
• Reduce litigation risk
• Provide certainty for both parties
• Allow a clean exit from the business

Legal advice should always be obtained before entering into settlement discussions.

Frequently Asked Questions (FAQs)