Following Tesco’s high profile suspension of top executives this week, guest blogger and employment lawyer, Philip Landau, of Landau Law, looks at the right for employers to suspend employees – and when it might be used.
With Tesco suspending four of its senior executives this week after the supermarket overstated its half-year profit forecast by £250m, it has thrown into the spotlight the rights of employers to suspend employees and whether there is a serious enough reason to do so.
Why might an employer want to suspend an employee?
Does an employer have the right to suspend?
If an employee has been accused of gross misconduct or some other serious disciplinary matter, it may be entitled to suspend that person pending investigation. Suspension is not, in itself, a disciplinary measure, but it does often lead to disciplinary procedures.
A non-exhaustive list of the circumstances under which an employee might be suspended will usually be set out in a contract of employment or staff handbook. But even if there is no provision for a period of suspension in the contract or staff handbook, most employers will be deemed to have acted reasonably – as long as the employee continues to receive his full salary and does not suffer any other kind of detriment.
If an employer is thinking about suspension, they should ideally discuss the situation with the employee first. Employers should also ensure that the suspension is not unnecessarily lengthy.
Is there a right for an employee to be paid during the suspension?
If an employer fails to pay the employee, he may have a claim for unlawful deduction of wages and even constructive dismissal, unless there is a contractual right reserved not to make such payment during the period of suspension.
What potential claims might an employee have?
If there are no reasonable grounds for suspension, or an employee is suspended for an unreasonable amount of time, there may be grounds for a claim based on constructive unfair dismissal. There may also be a claim for unlawful deduction of wages if there is no right reserved in the contract to make such a deduction.
The reality, however, is that more often than not, once an employee has been suspended, the relationship between employer and employee has already broken down irretrievably even before any decision in respect of the suspension has been taken. The employee will either be disciplined, resign on his own accord, or reach an amicable departure, under a settlement agreement.
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