I wonder if I can suspend an employee if they have been arrested?

Dealing with the arrest of an employee can be a complex and sensitive issue. Employers must take a careful approach and ensure that they balance the rights of the employee with the needs of their business, particularly when it comes to the question of whether they can suspend an employee who has been arrested.

This article outlines the best practices for employers if they are thinking of suspending an employee who has been arrested.

Grounds for suspension

Employers are not automatically permitted by law to suspend an employee simply because they have been arrested. It must be ensured that in these circumstances, any action taken by the employer is done in accordance with employment contracts, company policies, and relevant legal principles. Additionally, employers should ensure that there is a clear contractual provision allowing for suspension within their employees’ contracts of employment.

Suspension is usually only appropriate in cases of serious misconduct, and should only be considered if it is necessary to protect the integrity of an investigation, protect other employees, or prevent further misconduct. In the context of an arrest, suspension may be appropriate if:

• the allegation is related to work;
• the nature of the alleged offence could seriously damage the reputation of the business or pose a risk to other employees or clients; or
• the arrest raises concerns that require an internal investigation.

Process for suspension

If an employer decides that suspension is necessary, it is crucial to follow a fair process. Before taking any action, the employer should review the employee's employment contract and their company's disciplinary policy.

If the employer decides to suspend an employee, they should communicate this decision in writing. The employer should explain the reason for suspension, the duration (if known), and the terms of the suspension (e.g. the pay the employee will receive during the suspension). It is also important to reassure the employee that suspension is not an assumption of guilt but a neutral act pending investigation.

Employers should ensure that periods of suspension are kept as brief as possible. Any period of suspension should not normally last longer than two weeks. However, this depends on the facts of each case. Employers should regularly review the situation to determine whether the suspension is still necessary. If the investigation concludes and there is no reason for the employee not to return to work, the suspension should be lifted immediately.

Employers must ensure that they maintain confidentiality throughout the process. The information regarding the employee's arrest and suspension should only be disclosed to staff who are authorised to be informed of such information.

The employer’s decisions should only be based on the facts available to them, and any internal disciplinary action should be justified independently of the criminal process.

Alternatives to suspension

In some cases, it may be necessary for employers to consider alternatives to suspension, such as:

• changing the employee’s shifts;
• allowing the employee to work remotely;
• limiting the employee’s duties to non-sensitive areas of their work that do not conflict with the nature of the arrest; or
• temporarily resigning the employee to another role where they are not exposed to sensitive information or customers.

Alternatives to suspension should be considered by employers but may not be appropriate depending on the nature and severity of the employee’s arrest.

Potential risks of suspension

If an employer fails to handle suspension in a proper way, they may face significant legal risks such as unfair or constructive dismissal claims and discrimination claims being made against them.

Additionally, employers must ensure that their decision to suspend an employee is carried out by following a fair procedure and that the decision to suspend the employee is not based on any discriminatory factors.

Conclusion

Suspending an employee who has been arrested is a complex issue that requires careful consideration. While suspension may be necessary in some circumstances, it should always be a last resort, used only when there is a clear and justifiable reason. By following a fair process and considering alternatives to suspension, employers can minimise repercussions and ensure that the situation is handled in a way that balances both the rights of the employee and the interests of the employer’s business

If you have any questions about suspending an employee who has been arrested, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.