Q: One of our company’s directors has been accused by a colleague of bullying, and footage of the director appearing to be aggressive has appeared on social media. We are investigating but I am worried that our reputation will be damaged if we are not seen to be taking it seriously. Can we formally suspend him as a director while we investigate?
A: You are right to take any allegation of bullying very seriously, especially if it involves one of your directors, and you are right to want to investigate the circumstances. Companies often now have a bullying policy, and although it may not refer specifically to a director being accused of bullying, you should nonetheless assume it will apply.
While the matter is investigated, suspension is certainly an option. It may be appropriate if there is a risk of evidence being tampered with (for example, emails and internal social messages such as on Slack or Teams) or of any further adverse behaviour. It may also be appropriate if the company’s business reputation is at risk. But no longer is this a step that can be taken relatively lightly, as has sometimes been the case in the past.
These days, you must be much more considered in your decision-making. Acas, the workplace rights agency, has issued guidance that specifically addresses the issue of suspension, and you will want any court or tribunal to know you have consulted it and sought to abide by its terms.
The decision to suspend cannot be “knee-jerk” or “automatic”; it must involve consideration of many factors. These include: the exploration of possible alternatives to suspension — for example, moving the director’s office/place of work so as to remove them from being in day-to-day contact with the employee who has made the allegation; asking the director to work from home; or agreeing that the director “goes on leave” for an unspecified reason or for a reason unconnected to the issue you are investigating.
You should also consider the effect that a suspension could have on the mental health of your director, and the ramifications for their career as well as their job.
When you are considering whether to suspend, you should always assume that the director may seek disclosure of your relevant documents. These will include email traffic and other messages passing between you and your colleagues, unless such communications are legally privileged. They will have that privilege if they are to and from your lawyer and are made in connection with your taking legal advice.
You cannot just “cc” your lawyer in on every email in the belief that will mean they are privileged (as is sometimes assumed). You should consider with your lawyer or in-house legal team how to take legal advice to preserve legal privilege, so that communications do not need to be disclosed.
Check the director’s contract of employment, as it is likely to include a suspension clause. But even if it does not, this will not necessarily debar you from proceeding in this way, provided you act reasonably and take the decision carefully and in accordance with the Acas guidance. Not to do so may risk an accusation of being in breach of contract.
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Also, bear in mind the individual’s status as a director. How can the board or an appropriate officer of the company, such as the chief executive, make a decision to suspend? You should make an appropriate record of such a decision in case it is challenged. The director may also ask for a copy of any relevant board minutes or board meeting agendas.
The point of preserving the company’s reputation in your decision to suspend should be very carefully considered, because of the effect it may have on the director concerned. An alternative arrangement to remove the director from the company during the investigation can explain their absence and may avoid actually having to confirm they are “suspended” (although for the public profile of the company, that may not be enough).
We have seen recently how social media “footage” can at first sight appear to be incriminating, but that on further analysis, the position is less clear. It is as well to bear that in mind to avoid any suggestion the company “jumped to conclusions”.
So to sum up, yes, you can suspend the director while you investigate — but you must do so in accordance with the process outlined above if you are to avoid even more ramifications than you are already having to deal with.
Richard Fox is an employment partner at Keystone Law