Workplace Investigations - Acas guidance on supporting an employee’s mental health during suspensions

Why suspend?

• Suspension carries the risk of breaching the employment contract and inviting legal claims. It should only be used when it is a reasonable way of dealing with the situation and there are no appropriate alternatives.
• Frequently, employers take the decision to suspend where:
  • there are concerns that the person being suspended may damage evidence or influence witnesses, and that suspension is necessary in order to protect the investigation process;
  • the alleged misconduct is so serious (for example, allegations of dishonesty, violence or sexual misconduct) that the employer perceives that the risk of keeping the individual in place is too great; and
  • to separate employees who have raised complaints against one another where it is not possible to keep them separate in the workplace.
• Suspension should not be a ‘knee-jerk’ reaction and it won’t always be necessary or appropriate to suspend.

Mitigating the effects of suspension

• Being suspended and/or being the subject of an investigation will undoubtedly be a difficult and stressful time for anyone. So how do employers balance the need to ensure a robust investigation process whilst also trying to safeguard an employee’s mental health (and in doing so protect the business from allegations that the employer has already made up its mind or breached trust and confidence)?  It can be a tricky balancing act to get right.
• Practical tips for employers to prevent mental health issues arising (or getting worse) include ensuring that they:
  • communicate clearly with the person being suspended, or investigated, and keep in regular contact with them throughout the process;
  • make clear that the suspension/investigation does not mean that a decision has been taken that the person has done something wrong;
  • make clear to the person suspended or being investigated that they will be able to participate in the process and that their point of view will be heard;
  • update the person under investigation on the investigation process and when it is likely to end;
  • give the person who is suspended/under investigation a point of contact so they know who to speak to if they have any questions or concerns; and
  • signpost the support that is available throughout the period of suspension/investigation and encourage them to use it.
• The support that may be available will vary depending on the employer and the nature of the issues under investigation. An employer may have access to an employee assistance programme (EAP), in which case, details of how to access this service should be made clear to the person being suspended/investigated.  It may also be appropriate to signpost a workplace mental health champion or support network, or, if the employee is a member, a trade union.  There may also be external helplines or charities that can offer support.
• In most cases, it is important that whatever support a complainant is offered, the same is offered in relation to the accused. This helps demonstrate that no decisions have been made and that both parties are being appropriately supported in a similar way.

Legal advice should be sought if there are any concerns about whether suspension is appropriate, how to go about implementing a suspension or how to put in place appropriate arrangements during the suspension or investigation process.

Greenwoods’ Workplace Investigation Team – how we can help

Our Workplace Investigation team offers organisations the opportunity to use legal experts to undertake workplace investigations, enabling them to demonstrate impartiality at an early stage and that the matter under investigation is being taken extremely seriously.

The team’s experts have the legal knowledge, skills and expertise to investigate on an organisation’s behalf and take a flexible, collaborative, and, importantly, practical approach. There is no risk of the process becoming too ‘legal’, and organisations outsourcing investigations benefit from essential resource not being over-stretched.

If you need legal advice on any of the issues this article considers, or if you feel that your organisation would benefit from using Greenwoods’ Workplace Investigation Team, please get in touch with Sophie Askew.  We would love to discuss how we can help.