Following the last edition’s top tips for investigations, it is also important to consider the implications where there are matters which are deemed as potential gross misconduct. Where an employee is found guilty of a gross misconduct offence, the outcome may be to summarily dismiss the employee (i.e. terminate employment with no notice). However, there is still the requirement to follow a full and fair procedure in line with your internal company procedures and the minimum ACAS code of practice.
Many situations may arise whereby a gross misconduct offence may occur, which are the same or similar to any other industry. However, the main concerns which differ to any other environment is the potential for vulnerable individuals or groups to be abused or neglected with regards to their care, privacy, dignity and metal wellbeing. Therefore the following tips should be considered when considering suspensions.
Should I always suspend immediately?
Where there is an allegation which potentially poses a risk to a vulnerable person you would want to consider suspending the employee as a holding measure to ensure you are not leaving the vulnerable person at risk. However, tribunals will consider whether it is reasonable to suspend the employee, and it may be wise to consider whether some form of immediate investigation is appropriate before suspending the employee. This can often prove difficult, however, it may be that speaking with the individual before taking any action can provide you with an explanation that dispels any concern that misconduct occurred.
Is suspension on full pay?
When considering the suspension, you must check your contract of employment and any disciplinary procedures to establish any contractual commitments. Suspension would normally attract payment, as this period is deemed a holding measure whilst you continue with the disciplinary process to establish any substance to the allegations. However, there may be no contractual right to payment whilst an employee is suspended. Therefore, always seek advice regarding whether any payments should be made to ensure this is processed correctly, and in line with your procedures.
Where an employee is suspended what occurs if the police state we are not allowed to continue with our internal procedure until they have completed their own?
This can often create substantial difficulties as you would not be able to hold any hearings with the employee until receiving approval from the police. It can then prove costly (dependent on whether suspension pay is required) and time consuming to complete the disciplinary process.
It is therefore vitally important that an employer carries out a thorough investigation immediately to gather as much information as possible prior to being requested by the police to stop. This may create options to deal with matters and avoid often high suspension costs.
How can I avoid suspending employees and incurring suspension costs where possible?
Always consider in the first instance whether a suspension is required. Often, due to the safeguarding concerns of the vulnerable person involved, this may be unavoidable, but give consideration to:
· Conducting a full investigation as soon as possible. This may prove that the employee has, in reality, no case to answer.
· Should the vulnerable person have the capacity, ensuring full details regarding concerns are taken immediately. Furthermore, take the chance to re-question the person to ensure consistency of facts.
· Checking the employee’s terms and conditions. This may allow no payment during periods of suspension where they have no contractual hours of work and would only be suspended on contractual pay.
· Noting that, should the employee fail to attend meetings, or remain uncontactable, then they would forego any suspension payments until they comply with the rules of their suspension.
· Considering whether there are any other alternatives to suspension whereby you can ensure there is no risk posed any vulnerable person. However, always ensure you seek advice regarding any options prior to allowing the employee to continue working to ensure it is safe to do so and would not prejudice the process.