Employers need to take extra care on suspensions

By Scott Wilson, Partner & Josephine Toop, Solicitor

First published in NBR 22 August 2008

It is a common misconception among employers that you can always suspend an employee. In fact, the ability to suspend depends on the facts of the particular situation.

Employers should be careful when making decisions here, since suspension can lead to a personal grievance for unjustified disadvantage. Suspension without pay will almost never be justified.

The provisions of the employment agreement are a good place to start in assessing whether there is a right to suspend. If there is no provision in the employment agreement authorising suspension, the employer will only be able to justify it in exceptional cases. It is advisable to have carefully worded clauses in your employment agreements that give you the ability to suspend employees on pay, and without pay in certain circumstances (such as during a police investigation into criminal offences).

To justify a suspension you need good reason to believe that the employee’s continued presence in the workplace will, or may, give rise to some other significant issue.

A suspicion that an employee has engaged in misconduct will not, in itself, justify suspension while investigations are under way. Examples of situations where an employee can justify a suspension include danger that the misconduct could be repeated, that the employee might intimidate witnesses/tamper with evidence, or present a health and safety risk.

Even where there is a good reason to suspend an employee, the Courts have made it clear that a fair process must be followed.

Procedural requirements in this area were recently considered by the Employment Court in Sefo v Sealord Shellfish. After noting the good faith requirements in the legislation, the Court said that the employee must be provided with access to appropriate and relevant information about the proposed suspension. He/she must be given an opportunity to comment on the information, if a suspension decision is one that will, or is likely to, have an adverse effect on continued employment. The reality is that an adverse effect on the employee is almost inevitable, so the employer will need to adhere to these procedural steps in the overwhelming majority of cases before it makes the decision to suspend.

In very rare circumstances an employer may be able to shorten the process. For instance, it might not be appropriate to delay an intended suspension to give the employee opportunity to be heard before the suspension decision is madewhere there is imminent danger to the employee or to others. However, employers should be cautious because, as the case law makes clear, there will be very few cases where a decision to suspend will be justifiable without the employee having had an informed opportunity to be heard.

Employers should not to rush into knee-jerk decisions, unnecessarily throwing open doors for the employee to challenge a suspension. There may be ways of conducting the investigation into the alleged misconduct without removing employees from the workplace. If their removal is necessary, employers should ensure that the suspension complies with the rules of natural justice.

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