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It’s a common misconception that an employer can simply not require an employee to attend work where a disciplinary investigation is underway.  However, this amounts to suspension unless it is agreed with the employee, and unlawful suspensions are risky in terms of potential personal grievances.  Employers therefore need to tread carefully when sending an employee away from the workplace.

What is suspension?
A suspension from work is where an employee remains employed but is directed to temporarily stay away from the workplace.

When can an employer lawfully suspend?
If allegations of serious misconduct are made against an employee, it may be appropriate for the employee to be suspended however this will depend on the nature of the allegations. It is best practice to only suspend an employee if there is a clause in the employment agreement which allows it, as only in very limited circumstances will a suspension be lawful otherwise.

An employer must act as a fair and reasonable employer when implementing a suspension.  This includes having good reason for the suspension, and following a fair process in consulting the employee about the proposal to suspend before the decision to do so is reached.  There must be a link between the alleged misconduct by the employee and the need to remove that person from work – an employer cannot use suspension as a form of punishment.

Examples of reasons that may justify suspending an employee include if an investigation would be compromised by the employee being at work, or if the employee’s presence at work is a risk to health and safety (for example, if the allegation is that the employee has been at work under the influence of drugs or alcohol and the workplace is safety sensitive.)

Suspension should be paid, except in extreme situations where suspension may be long term, for example, where a related Police prosecution means the person will be incarcerated and unable to answer disciplinary allegations.

If an employer breaches their legal obligations when suspending an employee, by either suspending without cause or failing to follow a proper process, they are susceptible to a potential unjustified disadvantage personal grievance. We strongly recommend seeking professional advice if you are considering suspending any employee. Our team of experts can help you in this area.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.