Can employees be suspended from work if they are arrested?

Recent years have seen a number of members of Parliament arrested for serious offences, such as sexual harassment. Often MPs will voluntarily stay away from Parliament pending investigation, but there had, until recently, been no official power to exclude MPs accused of serious wrongdoing.

But on 13 May 2024 the House of Commons voted to exclude MPs from Parliament if they are arrested on suspicion of serious offences. The original proposal put forward by government was that MPs would only be banned at the point they are formally charged. Going forward, if an MP is arrested for a violent or sexual offence, a Commons panel will conduct a risk-based assessment to decide whether to bar them from Parliament. It aims to protect the safety of Parliamentary staff and maintain public trust.

Labour former minister Chris Byrant praised the change, saying, “Parliament should be no different from any other workplace”. But can employees be suspended from the workplace at the point of arrest? Or even at the point of charge?

What is suspension?

Suspension is a step which employers will consider where an employee faces allegations of serious misconduct. It is a temporary measure where an employee is instructed to stop working while a disciplinary or grievance investigation is conducted. Similar to excluding an MP from Parliament, it keeps employees away from the workplace.

However, the peculiar position of MPs means that, even if MPs are excluded from Parliament, they retain the ability to represent their constituents through various other means, including in writing, holding advice surgeries and attending meetings and events off the estate. This reflects the fact that MPs are also individual employers, who will operate their own staff office. Additionally, MPs will have the option to vote by proxy, will continue to hold their title and receive their salaries.

Suspension in the workplace is not normally a disciplinary action but a neutral act intended to facilitate a fair and swift investigation by the employer. Although it can be a strong signal to employees about the seriousness of the allegation, it is a step that should only be taken when there is no other option.

When to suspend?

Suspension will usually only be appropriate during an investigation for serious misconduct, but each case should be considered individually. Suspension may be an appropriate step when:

• The business faces a potential threat, such as reputational damage.
• There is a potential threat to other employees or clients. This could include if there have been allegations of serious violence or sexual harassment.
• An effective investigation is not possible if the employee remains at work, as they might destroy evidence or influence witnesses.

This is quite a high bar and alternative measures should be explored first. This could include changing shifts, requiring the employee to work from home, relocating the employee within the organisation, limiting duties or restricting access to certain systems or tools.

The House of Commons debate highlighted that there is a delicate balance between taking immediate action, protecting other staff, public trust and ensuring fair treatment.

Employers considering suspension of an employee have similar considerations when looking at suspension in the workplace. Employees in the private sector do not have the same status as MPs, who are operating in a public role and are perceived as being in a position of power. Nevertheless, employers are often concerned about protecting their staff and their own reputation. And this must be weighed against the risk of an employee being (or feeling) prejudged and the seriousness of suspension.

Must there be a contractual right to suspend?

Ideally, there should be a clear contractual provision allowing for suspension. Employers should ensure there is a contractual right to suspend and, where they can, set out a method of calculating pay during any suspension.

If the employment contract does not provide the right to suspend, employers should consider if there's an implied right to work. This may exist if, for instance, suspension would prevent the employee from earning income, like commission, or hinder them from using their professional skills regularly.

Should employees be paid whilst suspended?

The Acas guide on suspension recommends that employees continue to receive their usual pay and benefits during this period (unless the contract provides otherwise). And even if the contract allows a reduction or no pay, withholding pay could still be perceived as punitive or an assumption of guilt. This will potentially complicate matters during subsequent disciplinary proceedings and expose the employer to possible claims.

Can an employee be suspended if an employee is arrested?

It can be difficult for an employer to determine next steps if an employee is arrested. Even with a very serious allegation, suspension should not be an automatic step. Indeed, even MPs will not be automatically barred from Parliament; the matter will initially be referred to a conduct panel for review. The panel will consider the nature of the allegation, any safeguarding concerns, the risk to the Parliamentary community or an individual/group within it, information from the police and any undertaking by the MP to voluntarily stay away.

Similarly, employers will need to gather some initial information into what has happened, what the allegations are, how serious they might be and the potential impact on other staff and the business. Relevant considerations to whether it is appropriate to suspend will include:

• If the allegation concerns events at work, the impact on the colleague(s) and any potential threat to their safety will be a primary consideration. The breakdown of work relationships, the need to protect other employees and ensuring a fair investigation could all be grounds for suspension.
  In this context, it will be natural for an employer to want to instigate an investigation under their disciplinary or grievance procedure. Where events have happened outside of work, this will need more careful consideration.
• If the alleged crime occurred outside work and is unrelated to the employee’s role, for example an alleged physical assault on a night out, this may not affect whether the employee can do their job. However, the employer will need to consider factors such as the employee’s position in the business, whether other employees could be at risk and any reputational concerns.
• If the alleged crime occurred outside of work but is related to the employee’s role, for example a Chief Financial Officer accused of fraud, this has clearer implications for the employment relationship. The employer should consider factors such as whether the arrest could impact the employee’s trustworthiness, their general ability to perform their role, and whether there is a risk of harm to the company.

Commercial considerations, such as client relationships or press involvement, can sometimes trump the legal analysis when considering whether to suspend. For example, if a client accuses an employee of sexual harassment, the client may have strong views that immediate and serious action be taken.

Can an employee be suspended if they are charged?

The position shifts if an employee is subsequently charged with a crime. Following a charge, the employee may be kept in police custody, meaning they are unable to work. In this case, the situation is simpler: if the employee is unable to work due to being in custody, there is no obligation to continue their salary. Although there remains a question about whether and how employment should be terminated, the employee will inevitably be away from the business and premises.

However, if they are placed on bail, they may be able and willing to continue working. Whilst this is a more serious scenario, suspension (and, indeed, dismissal) should still not be a knee-jerk reaction and similar factors should be considered to that set out above. There can be a long wait for a trial whilst an employee remains on bail and so any ongoing suspension on full pay could be costly for an employer. We consider the length of suspension further below.

What is the risk?

There is risk for an employer if they decide to suspend without a valid legal basis. Most notably, there will be arguments that the employer has breached the duty of trust and confidence. There is a risk the suspended employee resigns and claims constructive unfair dismissal (provided they have the requisite service). There may also be breach of contract claims depending on the circumstances. Inconsistent treatment of colleagues could also give rise to discrimination claims.

Of course, if an employee is ultimately dismissed, those with two years’ service may also claim for unfair dismissal.

How to suspend?

When suspending an employee, employers must act reasonably. This should be in line with the Acas Code (which says suspension with pay should only occur when considered necessary) and Acas guidance, as well as any internal policies. Handling a suspension unreasonably could impact the fairness of any subsequent dismissal.

If an employer consider suspension necessary after the initial information gathering, next steps should include:

• Internally documenting the suspension decision and the factors considered. This could include completing a suspension risk assessment.
• Informing the employee as soon as possible. Confirm the decision in writing, including:
  
  • The reason for suspension. How much detail you tell the employee will usually depend on the circumstances, but this is less likely to be an issue where an employee has already been arrested or charged with a serious offence.
  • The suspension period and review date.
  • Rights, obligations and responsibilities during suspension.
  • That the suspension is not considered a disciplinary action.
  • A point of contact for queries.
• Keeping the suspension period as short as possible (as recommended by the Acas Code).
• Ensuring that everyone involved keeps the suspension confidential, as far as possible. It can be helpful to have open discussions about what will be discussed with others, such as the employee’s team. Of course, employers should also be mindful of their data protection obligations.
• Remembering that suspension can be stressful for the employee. Employers should signpost available support to the employee, keep in regular touch and provide regular updates on the investigation process.
• Regularly reviewing the necessity of the suspension to ensure that it lasts no longer than reasonably required.
  Employers should carefully consider whether a suspension pending the conclusion of a criminal investigation is appropriate. In many cases, long-term suspension pending the outcome of criminal proceedings is likely to be unreasonable and unnecessary (as well as costly for the employer), and the employer should be able to resolve employment processes without waiting for the criminal proceedings to conclude.
• If following an investigation, no further action is needed, promptly end the suspension and arrange a meeting with the employee to discuss their return to work. Though not legally required, it's advisable to confirm the outcome and end of suspension in writing.
• If the investigation results in a decision to progress to a disciplinary hearing, decide whether to maintain the suspension during this process, and confirm any decision in writing.

Innocent until proven guilty?

Whether an employer should suspend an employee who is arrested or charged with a serious offence will always depends on the circumstances and advice should be taken.

Although natural justice is based on innocence until proven guilty, it is rarely this straightforward for employers. And although suspension is not a disciplinary action, it is often viewed by the individual as a pre-judgment of the accusation.

Employers, just like the Parliamentary conduct panel, must carefully balance legal and commercial concerns on a case-by-case basis, seeking advice when necessary. Whilst suspension remains an available tool during internal or external investigations, it may not always be the most reasonable or necessary course of action. It is essential for employers to exercise discernment and fairness, ensuring that any decision made upholds the principles of justice and due process.

The Acas Code of Practice can be accessed here. The Acas guidance on suspension from work can be accessed here.

The Parliament debate can be accessed here.