A serious sexual harassment complaint lands on HR’s desk. The employee raising the complaint says they do not feel safe working alongside the person they have accused. Should that person be suspended immediately? Sometimes, yes. In other cases, suspension can create an additional employment law problem.
The challenge for employers is particularly acute under the strengthened sexual harassment regime. From 30 October 2026, employers must take all reasonable steps to prevent sexual harassment. Employers may need to protect the complainant, the accused person and other workers while a complaint is investigated.
At the same time, an allegation remains an allegation until it has been properly investigated. Suspension should therefore be a risk-management decision, rather than an automatic response to the seriousness of the accusation. Getting that decision wrong can create tribunal risk on both sides.
Suspension may sometimes be necessary
There are situations where allowing an accused employee to remain in their normal role presents an unacceptable risk. An employer might reasonably consider suspension where there is a serious concern that the employee could:
- pose a continuing risk to the complainant or other employees
- interfere with evidence
- influence or intimidate witnesses
- obstruct the investigation
- repeat the alleged conduct while the investigation is taking place.
The strengthened preventative duty under the Employment Rights Act makes those questions particularly important. If an employer becomes aware of a credible risk of sexual harassment and simply allows that risk to continue without considering available safeguards, it may later be difficult to demonstrate that all reasonable preventative steps were taken. The employer therefore cannot ignore the risk simply because the allegation has not yet been proved.
Suspension should not be the automatic response
The opposite mistake is treating suspension as the default whenever somebody is accused of serious misconduct. Employers should consider each situation carefully and that suspension will only be necessary in some cases. Employers should specifically consider alternatives and take account of the impact suspension can have on the employee. The courts have been making the same point for years.
In Crawford v Suffolk Mental Health Partnership NHS Trust, the Court of Appeal warned against an “almost automatic response” of suspending employees as soon as serious allegations are made. Lord Justice Elias said suspension should not be a knee-jerk reaction and recognised the potentially damaging effect it can have on an employee’s reputation, wellbeing and relationships with colleagues.
That does not mean an employer must prove that suspension is absolutely necessary before using it. In Agoreyo v London Borough of Lambeth, the Court of Appeal stressed that each case turns on its facts. The relevant question was whether the employer had reasonable and proper cause for its decision. On the facts of that case, suspension pending investigation did not breach the implied term of mutual trust and confidence.
Employers need a reasoned decision. “Sexual harassment has been alleged, therefore we suspend” is unlikely to be a satisfactory process.
A sexual harassment case where the accused employee successfully challenged the process
West Sussex County Council v Austin provides a particularly useful warning. Mr Austin was Head of Finance at the council. In January 2012, he was sent home and then formally suspended after an allegation of sexual harassment was made against him.
Problems developed with the way the disciplinary process was handled. The original employment tribunal found serious procedural shortcomings, including failures to follow the employer’s own suspension procedure, keeping Mr Austin insufficiently informed about the allegation and handling aspects of the investigation unfairly. He eventually resigned and claimed constructive unfair dismissal.
The case reached the Employment Appeal Tribunal. Although a separate finding of sex discrimination against the council was overturned, the EAT held that the tribunal’s findings about the disciplinary process were sufficient to establish constructive unfair dismissal. An award was made at first instance: the Employment Tribunal awarded Mr Austin £168,957.29 after finding both sex discrimination and constructive unfair dismissal. A separate finding of sex discrimination was later overturned, and the case was returned to the Employment Tribunal to determine compensation for the unfair dismissal.
The key point is that the employer owes employment law obligations to the person accused as well as the person making the complaint.
An unnecessary suspension can breach trust and confidence
The legal risk can go further than poor procedure. Every employment contract contains an implied obligation that the employer will not, without reasonable and proper cause, behave in a way likely to destroy or seriously damage the relationship of mutual trust and confidence.
In Gogay v Hertfordshire County Council, an employee working in a children’s home was suspended following an allegation of sexual abuse. The Court of Appeal upheld the finding that the employer had breached the implied term of trust and confidence. The decision to suspend had been an immediate reaction to information that itself required careful evaluation.
A breach of that implied term can, in sufficiently serious circumstances, contribute to a constructive dismissal claim.
Suspension on full pay can still create legal risk
The point remains highly relevant today. In Bhatti v County Durham and Darlington NHS Foundation Trust [2026] EWHC 1079 (KB), a consultant surgeon challenged restrictions that prevented him from carrying out clinical work while concerns about his practice were investigated.
The case was not about sexual harassment, but the High Court restated important principles that apply whenever an employer suspends or excludes an employee during an investigation. An employer’s power to suspend must not be exercised on unreasonable grounds. An unjustified suspension can amount to a breach of contract or, in sufficiently serious circumstances, a breach of the implied term of trust and confidence between employer and employee.
Suspension can have significant consequences even where the employee continues to receive full pay. Being removed from the workplace can affect professional reputation, relationships with colleagues and, in some roles, the employee’s ability to maintain their career or professional practice. Courts have therefore recognised that financial compensation may not always completely remedy an unlawful suspension.
Bhatti also demonstrates that this does not prevent employers from suspending or restricting employees where there is a proper reason to do so. The High Court ultimately refused Mr Bhatti’s application for an injunction that would have returned him to clinical work. The Trust’s most recent decision to maintain the restrictions was supported by patient-safety and probity concerns, and the court found no serious issue to be tried over that decision.
However, the court scrutinised how the earlier restrictions had been reached. In relation to an earlier decision that effectively removed Mr Bhatti from all clinical work, the judge considered there were strong grounds for arguing that the Trust had failed properly to consider alternatives, particularly because concerns about some areas of his work did not obviously explain why all of his clinical practice had to be restricted.
For employers investigating sexual harassment, HR should identify what risk suspension is intended to address, consider whether a less intrusive measure could control that risk, and record why the chosen measure is reasonable.
A credible risk that the accused employee could intimidate the complainant, influence witnesses, interfere with evidence or repeat the alleged behaviour may provide strong grounds for suspension. Where those risks can instead be managed through temporary reporting changes, remote working, restricted contact or altered duties, the employer should at least consider those alternatives.
The tribunal window is wider in 2026
There is also a wider procedural change employers should bear in mind. From 1 October 2026, the normal time limit for bringing many employment tribunal claims increased from three months to six months.
The person making the complaint may have potential Equality Act, victimisation or other employment claims. Depending on the circumstances, the accused employee may also bring proceedings arising from the way they were treated, including a constructive unfair dismissal claim where the legal requirements are met, or discrimination claims where suspension or disciplinary treatment was itself discriminatory.
Employers therefore need to manage the complaint as one legal process rather than concentrating exclusively on avoiding liability to one of the parties.
Consider alternatives before suspending
The fact that the two employees cannot continue working exactly as before does not necessarily require complete suspension. Depending on the allegation and the workplace, temporary measures might include:
- changing reporting arrangements
- allowing home working
- moving duties or shifts temporarily
- restricting contact between particular employees
- removing access to particular systems, clients or locations
- changing who supervises a team.
Care is required when deciding who should move. Acas specifically warns employers against simply moving the person who made the complaint unless they ask to be moved, since doing so could appear to penalise them for complaining.
The employer should therefore assess what arrangement protects those involved while interfering with their normal employment as little as reasonably possible. This should be an individual assessment, rather than a rule that the accused must always remain in work or always be sent home.
If you suspend, document why
A sound suspension decision should be capable of answering a few straightforward questions.
- What risk are we trying to control?
- Why can that risk not adequately be controlled through a less intrusive measure?
- Why is suspension reasonable in these particular circumstances?
Those reasons should be recorded at the time. Trying to construct a justification months later in preparation for a tribunal is far less persuasive than contemporaneous evidence showing that alternatives were genuinely considered.
Acas’ own suspension letter template includes space for employers to record the alternative working arrangements they considered and why those alternatives were not appropriate.
That documentation can become particularly valuable where the employer later needs to demonstrate that it was simultaneously protecting the complainant and treating the accused employee fairly.
Suspension should never look like punishment
Where suspension is used, the employer should make clear that it is a temporary measure to enable the situation to be investigated. This means telling the employee that suspension does not mean the employer has decided they did anything wrong, explaining why suspension has been chosen and making clear what happens next.
The language used internally matters too. ,Announcing that somebody has been “removed following sexual harassment” before any findings have been made risks presenting an allegation as fact. Information should normally be restricted to those who need it.
The suspended employee should continue receiving the appropriate pay and benefits, be given a named contact and receive information about the progress of the investigation. They should also have access to appropriate wellbeing support. Being accused of sexual harassment can have serious professional and personal consequences even where an allegation is ultimately not substantiated.
Review the decision
It is very important that suspension should not become an administrative holding pattern. It should be kept as short as possible and reviewed regularly. The longer it continues, the greater the risk that it becomes unreasonable or contributes to a breakdown in trust. In this way, sometimes the reasons for suspension can also disappear.
Perhaps witnesses have now been interviewed, relevant data has been preserved or the complainant has moved to another site for unrelated reasons. If the risk that originally justified suspension no longer exists, the employer should reconsider whether suspension remains proportionate. A six-week investigation should not automatically mean six weeks of suspension.
What if the complaint is extremely serious?
The seriousness of an allegation is highly relevant, although seriousness alone does not establish guilt. An allegation of sexual assault, repeated predatory conduct or behaviour involving several employees may create a strong case for immediate safeguards.
Even then, the employer should ask what suspension is intended to achieve and document the answer. A grave allegation may justify rapid action. It does not justify abandoning due process.
The investigation should still consider evidence supporting and contradicting the allegation, the employee accused must have a meaningful opportunity to respond, and disciplinary action should follow only after a fair investigation establishes that there is a case to answer.
Protecting one employee does not require prejudging another
The Employment Rights Act has deliberately raised expectations around preventing sexual harassment. Employers need to intervene when they identify genuine risks. They should protect people who report harassment and ensure that complaints are taken seriously.
Those obligations do not require employers to assume that every allegation is proved at the point it is made. Suspension can be a legitimate and sometimes essential protective measure. It can also cause serious reputational and professional harm and, if used without reasonable grounds or handled unfairly, expose the employer to legal action from the person accused.
The safest approach is to treat suspension as a specific control for a specific risk.
Identify the risk, consider alternatives, record why suspension is necessary, explain that no finding has been made, keep the investigation moving and review the decision regularly. That allows employers to protect the person who has raised a complaint without sacrificing the fair process owed to the person accused.
