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When you are an employer, there are sometimes urgent issues caused by erratic or difficult employees. Serious circumstances like an employee committing fraud, or threatening a staff member or a customer, can be tough to manage. In these cases, it may be necessary to remove or suspend the employee from the workplace while you ascertain or investigate what has happened. This article will set out:

  • what suspension actually means;
  • how to suspend an employee; and
  • some answers to questions surrounding suspension.

What Does Suspension Actually Mean?

Suspension means the employee must:

  • leave the workplace;
  • not undertake any work or responsibilities that are part of their role; and
  • stay away from the workplace until the disciplinary process or investigation can be completed.

Suspended employees are still employed by your business and their employment agreement is still intact. It is, essentially, a tool for removing difficult or unsafe employees from the workplace so a rigorous process can be completed. It should not be treated as a disciplinary tool. This is because there are relatively few situations where you can legally suspend an employee.

How Do I Suspend An Employee?

As an employer, there are only limited circumstances when you can legally suspend an employee. There are where the employee:

  1. is under investigation for their behaviour and having them at work may compromise the investigation or cause further issues.  For example, if the employee is suspected of bribing another employee to commit wrongdoing. Then they may need to be removed during the investigation; and
  2. poses a risk to health and safety. For example, if the employee works in a safety-sensitive area and is under the influence of drugs or alcohol. Alternatively, if they are otherwise not able to do their job safely.

In terms of the process for suspending an employee, the starting point is that you should follow a fair process that gives the employee an opportunity to respond to any allegations. In other words, you should tell the employee you are considering suspending them, and give them time to take advice or give feedback.

However, it is not always feasible to give the employee the opportunity to give feedback. You can suspend the employee immediately if:

  • there is an immediate danger to the employee;
  • they pose a danger to others; or 
  • they are unable to complete their job for safety reasons.

However, you should be careful about this, as it may give the employee a personal grievance against you.

Generally speaking, you should ensure that all of your employment agreements have a clause around suspension.

This is standard and helps clarify the process in circumstances where you are looking to suspend. It is possible to suspend an employee who does not have a suspension clause in their agreement. However, this is more difficult and harder to later justify.

Suspension With or Without Pay?

You should almost always suspend employees on full pay. This may seem counter-intuitive while the employee is not doing any work. However, remember that their employment agreement still applies. Further, any wrongdoing usually has not been investigated fully at the point of suspension. On a good faith basis, you should continue paying your suspended employees.

If you suspend an employee without pay, this must be specifically provided for in that employee’s employment agreement.

Even where this is an option, you should be careful. This is because there may be a good-faith obligation to continue the employee’s pay before any wrongdoing has been confirmed by a fair process.

What Should I Do While My Employee is Suspended?

When you suspend an employee, it is important to ensure that you follow the correct legal process while investigating their possible misconduct. Make sure to follow the investigation procedure outlined in any policies and document each step. You should also consider hiring an external investigator, particularly if the allegation is serious or concerns an employee that is senior in the business. 

Key Takeaways

Suspension is a very serious step where an employee must leave the workplace and not undertake any work or responsibilities that are part of their role for a period of time. You can suspend an employee only in circumstances where their continued presence would cause significant issues, whether to the:

  • investigation of their alleged wrongdoing;
  • workplace; or
  • health and safety of themselves or their coworkers.

If you want to know more about suspending an employee, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

What is suspension?

Suspension usually refers to an employee needing to leave the workplace, not undertake any work or responsibilities, and stay away from the workplace until any wrongdoing they are alleged of committing has been investigated.

What can you suspend employees for?

Instances where the presence of the employee would compromise an investigation or workplace in some way, or where the employee continuing to work risks health and safety issues (whether to the employee themselves, or other workers).

Is suspension always on pay?

Usually, yes, although there is the possibility of suspending an employee without pay if this is provided for in their employment agreement.

Can an employee sue for being suspended?

Yes, they can, if the employer has suspended them without a fair or reasonable process; or if the employer did not have a good reason to suspend.

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