When can I legitimately send an employee home?

Imagine the scenario: you have commenced redundancy consultation with an employee or just had a difficult conversation with them about their performance not being up to scratch and offered them a package to leave to avoid the pain of going through a lengthy capability process. You think you know what the likely outcome will be and they can be quite a difficult person so you don’t want them around bad-mouthing you but how do you handle it?

It’s easy when someone has potentially committed an act of gross misconduct and it is being investigated: we have the mechanism of suspension and provided you have reserved the contractual right to suspend, an employer is justified in doing so for a short period of time.
Where you have commenced redundancy consultation, maybe made an initial announcement and are waiting to obtain the employee’s feedback on proposals, it undermines the redundancy process to place the employee on ‘garden leave’ or to prevent them from being in work, indeed the employee will scream ‘prejudgement’. Besides, ‘garden leave’ as a concept really kicks in when notice has been given and you are ahead of that.

In these circumstances, I often suggest that you tell the employee something like “I appreciate that this meeting has come as a bit of a shock so we won’t expect you to continue working this afternoon; why don’t you go home and prepare for our next meeting which will be on Monday”. That way you aren’t suspending the employee or placing them on garden leave, you are just offering them the ability to not come in by agreement.
But what if the employee insists on coming in and is disruptive, going around telling people in the open-plan office about confidential conversations? There is nothing wrong with taking this person to one side, reiterating the confidential nature of your conversations and explaining if that isn’t respected then disciplinary action would follow.

You do have to be careful though. In a 2006 case of Okiwu and Ukwaju v British Refugee Council where the redundancy process being followed was tainted by race discrimination, this sort of action was victimisation. The tribunal found that the reason for taking action was not that the employee had discussed confidential matters in an open-plan environment, letting everyone overhear her on the phone to her legal advisers, being vocal about bringing a claim, but that she had vocalised her dissatisfaction at the way her dismissal was handled, which in essence was a complaint of race discrimination. Making such an allegation was a protected act and so the tribunal concluded that she had been victimised.
Where you have had a protected conversation under s111A Employment Rights Act 1996 with a view to the employee being offered a settlement agreement to leave rather than undergo the performance management process, generally speaking the employee cannot then refer to that conversation in any claim for unfair dismissal. However, if the protected conversation has included “improper behaviour” a Tribunal is likely to find that the employer has lost that protection. I would argue that sending an employee home, removing them from the workplace is such a prejudicial act that it undermines the guidance from ACAS that employees should have 10 calendar days to consider any offer being made. Certainly taking they keys from them and making them clear their desks making it clear that you have no intention of them coming back, puts the employee under such a lot of psychological pressure that a tribunal could find it was “improper”. The same would be true of removing computer access rights or blocking emails.

So it may be better to just grin and bear the situation for a few days, painful though it is. That said, I have known disgruntled employees damage an employer’s computer system so if you have any concerns about these sorts of issues do the right thing for the organisation from a commercial perspective and worry about the law later!