Suspensions

Investigating and dealing with serious allegations made against staff is always a difficult task for managers and senior staff. Along with assessing which – if any – specific policies and procedures have been overlooked, the question of whether or not the employee needs to be suspended is key.

Many organisations believe that, if an allegation is deemed serious or as gross misconduct, an employee has to be suspended. But this isn’t always the case; suspension shouldn’t be a knee-jerk reaction.

Suspending an employee following an allegation is something that should be considered in light of the specific circumstances of the incident that has occurred. It is not, and should not, be used as a means of punishment for the employee.

Suspensions can impact relationships with and between employees, the mental health of the employee suspended, and, potentially, the reputation of a setting, so should be entered into with full and careful consideration of all information available.

As such, suspension should be a last resort to ensure that a full and fair investigation into the situation can be carried out or to reduce or remove a risk to the organisation. It’s therefore expected that, before a decision to suspend an employee is made, all potential alternatives are considered. This could be anything from removing certain tasks to relocating the employee to another part of the setting – or even a different setting altogether.

Essentially, all employers have to identify the risk of allowing the employee to continue in the role and look at ways that this risk could be removed without preventing the employee from attending work. Only if there’s no other way to remove this risk should the employee be suspended from work, pending an investigation.

Further, the ACAS code of practice outlines that any period of suspension should be kept as short as possible and kept under review. If at any point the risk can be managed in any other way, these alternatives should be put into place and the employee required to return to work.

Considering alternatives to suspension where possible also ensures that other staffing issues – such as additional workload on other staff or the maintenance of staff:child ratios – are less impacted while full details are established and any decision made.

There are other situations where suspension from work may have to be considered on health and safety grounds.

This most commonly occurs when an employee is clearly unwell and unable to undertake duties safely while at work, or if they have returned to work after a period of sickness absence but seem unable to undertake the agreed duties.

If, following a discussion with the employee, employers feel that the employee needs to seek the opinion of a medical professional prior to continuing work, they can be suspended while obtaining this medical advice. This can help with the provision of further information that allows the employer to conduct a thorough risk assessment.

However, legally, this would not be called a ‘medical suspension’. True medical suspensions can only occur when employees are exposed to dangerous levels of lead, radiation or other hazardous substances under the Health and Safety at Work Act 1978.

Alternatively, suspension on health and safety grounds may also need to be considered if a risk assessment carried out for a pregnant employee identifies significant risks that cannot be removed.

Risk assessments have to account for the specific duties the employee carries out, as well as general risks – such as heavy lifting or sitting or standing for long periods – and any specific medical advice the employee has been given. Accommodations for these risks would have to be made where possible, at no less favourable terms and conditions for the employee.

Accommodations to the role could include allowing more frequent breaks, a mix of sitting/standing, or reshuffling key children to try to prevent any aggression towards the pregnant employee if this is known to be a risk. If no suitable accommodations can be made and there are no alternative roles without these risks available, the employee may need to be prevented from working until those risks are no longer present, which could be the remainder of the employee’s pregnancy.

Suspension for any reason should always be on full pay, which can cause financial difficulty for an employer who is also paying another staff member to cover the role during this period. This is another reason for suspension to be considered as a last resort and only where no alternatives to the suspension can be found.

Each situation is different, so whether suspension is required will depend on the specific facts; seeking further advice based on these facts helps to ensure the best action is taken for the setting, the employer, the employee, and, most importantly, the children.

As an Alliance member, you have access to Law-Call's 24-hour legal advice telephone service, which can help you navigate through the process. Contact details can be found in the Alliance member benefit overview section of EYA Central: bit.ly/U5Law-Call.