Advice and Tips
Sometimes an employer chooses to remove an employee temporarily from their position (= suspend them). Many people feel this action is both upsetting and unreasonable.
Below we give a brief explanation of the rules governing suspension in accordance with The Working Environment Act, while The Civil Service Act §29 states the rules applying to the public sector (the terms for suspension in these two sectors are quite similar to one another).
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Employee suspension is a serious step that can only be used under a certain set of circumstances. An employer must be given the chance to investigate allegations of unacceptable conduct made against their employee. Suspension may be justifiable because the employer needs time to do so; yet during this time, the employee also has the chance to influence their co-workers regarding the situation. So if you’re a manager, you might find it difficult to have this employee at work while their unacceptable conduct is being investigated. At the same time, there must be a thorough assessment of whether there is actually a need for suspension in an ongoing case.
Procedural fairness required
The Working Environment Act states that the procedural rules applying to a standard dismissal may do so as long as they’re appropriate; in other words, an employer must practice procedural fairness when dismissing an employee.
Before any decision on suspension is reached, the employer must to the most practical extent possible discuss the action with both the employee and their representative(s). Tekna recommends always holding this meeting; further a company union representative should be present at it to help the employee if needed. If no such meeting is held, this fact alone could be significant with regard to an eventual factual assessment of the reasons for the suspension itself.
The employer must also give a written justification for the suspension if the employee demands it.
How can an employee be suspended?
According to the law, two conditions must exist in order for a suspension to be considered valid:
- Firstly, there must be reason to believe that the employee is guilty of committing acts that can justify their being dismissed (the employment relationship ends with immediate effect). This must be assessed in relation to the information the employer had at the time of the suspension. The employer must prove that there is an actual basis for suspension. There must be justifiable suspicion of the employee’s actions. If, for example, an employer has concerns about an employee who has problems cooperating with their co-workers and manager(s), it isn’t normally considered grounds for suspension; so in this case, no suspension may be issued. On the other hand, punishable offenses (such as embezzlement) may justify a dismissal.
- Secondly, the employer must show that they have to react with a suspension. If this is the case, the interests of both employer and employee must be analyzed in relation to one another. On the one hand, consideration must be given to the employer’s need for «investigating» while being aware of the risk that evidence may be lost or witnesses may be influenced. On the other hand, the employee’s interests must be protected in a reasonable way. And if the employer can find a solution other than suspension, the “criterion of necessity” won’t be met. An example could include relocating the employee while their case is being investigated. It’s of course illegal for an employer to use suspension to just display their power or frighten an employee.
What happens to the employment relationship during the suspension period?
The employment relationship is temporarily placed «on hold» during the suspension period. The employee is released from their work duties if no alternative work has been found for them. However, the employer must still pay the employee their regular wages. (What’s considered “regular wages” can sometimes be interpreted very differently, but that’s a topic for a different article.)
Employer’s obligations during the suspension period
The employer is obligated to continuously assess the suspension’s basis. If the employer can no longer find any basis, the employee must be called back to work immediately. The law usually sets three months as the maximum time a suspension period may last. If the employer still hasn’t completed their investigation during this period, the suspension can in rare instances be extended; the law states that there must be «exceptional reasons» for doing so. For example, if criminal charges have been brought in a case, this might be grounds for legally extending the suspension period beyond three months.
According to the law, an employee can claim compensation if they feel that their suspension was invalid. This normally involves restitution compensation for non-financial losses (tort law = compensation for pain and suffering), since the employee keeps their wages during the suspension period. It is believed that the amount of restitution compensation may be higher in cases of suspension than in those of regular dismissal. The reason for this is that a suspension is often quite upsetting for an employee; however, the way in which the employer handles the situation is of course important with respect to the assessment.
If your employer believes they have a good reason for suspending you, ask them for a meeting to discuss the matter as soon as possible. At the same time, you should ask your company union representative(s) to attend the meeting as well. If your employer chooses to suspend you – either before or after this meeting –please contact Tekna’s Legal Department. We can help you assess the validity of your suspension and answer any questions you might have about this process.