We have an employee who has been accused of a serious act in the workplace, and we think it could ultimately end in dismissal for gross misconduct, depending how everything goes. Do we have to suspend them; if we don't, will it mean we cannot treat the matter as gross misconduct?

When you suspect an employee has done something wrong which would be gross misconduct, you'll need to do an investigation to see if there is a case to answer. Because gross misconduct is serious and can mean that the employee could be dismissed for the first offence, you might need to temporarily remove the employee from the situation.

First thoughts tend to go to suspension but you should only consider suspension if you believe it's needed to protect the investigation – for example if you're concerned about someone damaging evidence or influencing witnesses; or to protect the business – for example if there's a genuine risk to your customers, property or business interests; to protect other staff or the person under investigation.

First, check the contract to see if it allows for suspension and then explore whether you actually need to suspend the employee or whether there is an alternative temporary option that meets the same objective but isn't as harsh. In all circumstances, you should check if there is an alternative to suspending someone. This could be:

  • changing shifts;
  • working in a different part of the organisation;
  • working from home;
  • working from a different office or site;
  • stopping doing part of their job – for example stopping handling stock if you're investigating stock going missing;
  • working with different customers or away from customers – for example if you're investigating a serious complaint from a customer;
  • stopping using a specific system or tool – for example removing access to the organisation's finance system if you're investigating a large amount of missing money.

The above actions should only be taken if there is a contractual right to do so, or alternatively with the agreement of the employee. If the contract does not allow you to enforce these things, they should not be done as they could result in a breach of contract.

Whatever happens, you should explain to the employee what's happening and why, and keep a record of this too. 

Further information