By Dakota Murphey – RecruitLoop

Setting out in business is an exciting time and hiring your first employee is a huge step. Inviting someone in to share your vision and be a part of your idea is both exhilarating and daunting.

Let’s face it, hiring the wrong person could be disastrous for your business.

Not only will you need to find a person who understands your standards, culture, and vision, there are also lots of legal obligations you will have to comply with as an employer.

Hiring your first employee might feel like a challenge, but it will be impossible to take your business forward without help. The right person and subsequent people can help you expand your business and contribute to your ideas, knowledge, and enthusiasm. Getting your hires right is essential.

But what happens when a hire goes wrong? Worse still, what if you hire an employee who commits an act of gross misconduct?

The worst mistake you can make is to fail to do anything and take too long to say goodbye.

Employees have rights, but you as an employer have rights too.

What is gross misconduct?

Gross misconduct in the workplace is unacceptable or improper behavior of a serious kind. You can sack someone on the spot for gross misconduct.

Most employers would consider intoxication (drink or drugs), fighting or physical abuse, indecent or lewd behavior, theft, fraud, sabotage, offensive behavior (such as sexism, harassment, discrimination, bullying or any form of abuse), serious negligence, or gross insubordination as examples of gross misconduct. In other words, an employee has to have behaved pretty badly to warrant sacking on the spot.

Check out some of the commonly asked questions about gross misconduct here.

Why and when would you suspend an employee?

First of all, what does suspended mean? If you suspect your employee of unacceptable behavior, you may find it is appropriate to suspend them from work while you carry out an investigation. It means your employee still works for you, but is asked not to attend their place of work or engage in any work for you.

There are three main reasons why you might suspend an employee from work.

These are:

·       an allegation of gross misconduct

·       medical grounds

·       workplace risk to an expectant mother

Suspending an employee for misconduct can have a serious impact on their reputation, so it should only be considered in certain circumstances.

Knee-jerk reactions into an allegation against an employee should be avoided. And remember, an employee on suspension will likely be receiving full pay (unless there is a contractual right not to do so), so there is a cost to the business.

More often than not, an issue of gross misconduct isn’t black and white and it’s essential that employers don’t act too hastily. If you fired someone for gross misconduct and they subsequently took you to an employment tribunal and won the case for unfair dismissal, the cost to your business could be huge.

However, in certain situations where safeguarding is an issue, doing nothing isn’t an option. Importantly, there must be strong evidence to indicate a cause for concern.

If you are dealing with a disciplinary matter, a suspension should only be an option in specific circumstances, such as gross misconduct, or where there has been a breakdown in communication between the employer and the employee and trust is an issue.

If the decision is taken to not suspend an employee while an investigation is carried out, then that decision should regularly be under review throughout the process. If further information comes to light to indicate gross misconduct, the employee can still be suspended.

Importantly, it is far easier to do this than to suspend an employee at the beginning and bring them back to work part-way through an investigation. A suspension will undoubtedly cast a smear over an employee’s reputation regardless of innocence.

What is the process for suspending an employee?

Before you employ staff you should set up a staff handbook, which includes written rules and procedures about employee performance and conduct. Explain what you mean by acceptable and unacceptable behavior in the workplace. Getting expectations clear from the outset is vital.

If you find yourself in the position of having to deal with a disciplinary matter or grievance at work, refer to the ACAS Code of Practice on disciplinary and grievance procedures before suspending anyone. You will need to issue a letter to the employee explaining why they are being suspended.

As an employer, you should keep abreast of employment law. If possible, hire a person to deal with all of your HR (Human Resources) matters. Spending money on HR can seem like an unnecessary expense for a small business, but when it comes to complex employment regulations, having a person who can help you navigate people management effectively and efficiently will save your business money in the long term.

How long can you suspend an employee for?

If you are suspending someone on health and safety or medical grounds, because the job they are doing is posing a risk to their health, the suspension period can last up to 26 weeks (as long as your employee has been employed for at least one month).

If you are suspending an employee while you carry out an investigation into a disciplinary matter, keep the period of suspension as short as possible and regularly review whether the suspension remains necessary.

You will need to keep your employee regularly updated about their suspension and keep them informed about how much longer the suspension will last. Keeping an employee suspended unnecessarily could result in the employee claiming constructive dismissal.

Do you have to pay a suspended employee?

A suspended employee remains in your employment but does not attend your place of work or engage in any work from home. In most circumstances, the employee should be paid in full and receive the same benefits during a period of suspension.

An employee can only be suspended without pay if there is a clear contractual right to suspend without pay or benefits, or if they are not willing or able to attend work (for example, if they are ill).

Can a suspended employee have contact with colleagues?

You should make it clear to any employee you are suspending that they should not try to influence any colleagues involved in the disciplinary process. However, your employee may contact colleagues in order to prepare their case in response to the allegations.

Alternatives to suspension

Suspending an employee should always be a last resort and should never be a ‘knee-jerk’ reaction. Always seek advice before considering a suspension and only carry it out if there are no other alternatives.

Consider whether you can move an employee to another role or location. Suspending an employee always needs to be justified.
See some examples of cases where employers have had reasonable ground to suspend an employee here.