As a tribunal lawyer I often find unfair dismissal claims relating to conduct to be the most straight forward to present in a hearing. Case law around conduct dismissals is relatively settled and conduct dismissals with no element of discrimination were relatively predictable.
However, not many disciplinary processes are perfect and, in my experience, there were two areas which were more likely than any other to make a respondent employer squirm uncomfortably when giving evidence during an unfair dismissal claim. The first is when suspension is an area being focused on by the Employment Tribunal. In the past, it was very common to find that suspension was the automatic response of an employer when a conduct issue arose. While many people managers are now aware that this is not the correct approach, employers can still get caught out at this stage. For those that are interested, the second area of difficulty tended to be whether a dismissing manager had properly taken into account mitigation and ensured the sanction being issued was in alignment with how similar "offences" had been dealt with within the organisation, but that is a topic for another day.
Fortunately ACAS has published new guidance - Deciding whether to suspend someone: Suspension during an investigation at work - which looks like it will be a great help to employers not only ensuring suspensions are used properly, but also reminding them of the need to support an employee's mental health during suspension.
In essence, the guidance covers off the practical aspects of suspension, reminding employers to stop and think before suspending and considering whether there are alternatives for the employee in question. For example can their work location be changed, would it be effective to move them to work with different people - be they colleagues or customers - or would stopping the employee from working with certain systems, tools or on a specific task negate the need to suspend? The guidance also highlights the importance of communicating the reason for the suspension and the fact it is not a sanction, the need to maintain pay and benefits and to keep the suspension as short as possible. It also looks at how to handle more complicated scenarios such as where there is a need to separate two people and, as mentioned above, raises awareness of the stress a suspended employee may be under and how the employer can support them.
It is fair to say that if, during the preparation for an employment tribunal hearing, an employer client explained to me they had followed this ACAS guidance it would be music to my ears. Not only does it minimise (and most likely avoid) the prospect of a breach of contract arising from the suspension, but being able to demonstrate a well thought thorough suspension procedure puts the employer on the front foot from the word go.
The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.