Navigating Employee Suspension: When and How to Make Informed Decisions
Employee suspension is a sensitive topic in the workplace, often prompting questions about when it's appropriate and whether it's permissible to suspend an employee without pay.
As employers in New Zealand, it's vital to understand the legal and ethical considerations surrounding suspensions and make informed decisions that balance the rights of both parties involved.
Understanding Suspension
Suspension is the temporary removal of an employee from their job responsibilities and the workplace environment. It's often used when investigating allegations of misconduct, serious breaches of company policies, or when the employee's presence might interfere with an ongoing investigation. While suspension can be a necessary tool to ensure a fair and thorough investigation, it should be approached with caution and consideration.
Is Suspending Without Pay Ever Acceptable?
In New Zealand, the legal framework around suspensions without pay is clear: employees have the right to be paid for the work they perform. This includes the period of suspension, unless there's a valid and explicit contractual agreement allowing for unpaid suspension.
Employers are advised to exercise extreme caution when considering suspensions without pay, as such actions can have serious legal and reputational consequences.
When to Suspend
Serious Misconduct: In cases of alleged serious misconduct that could harm the business, other employees, or clients, suspension might be warranted. However, this should be temporary and used only until a proper investigation can take place.
Protecting the Investigation: If an employee's presence might compromise the integrity of an investigation, suspension can be necessary. This might be in cases of fraud, theft, or harassment.
Safety Concerns: If an employee poses a risk to themselves or others due to their conduct, suspension might be appropriate. This is often the case in instances of workplace violence or substance abuse.
Preservation of Evidence: In certain cases, such as data breaches or potential destruction of evidence, suspension could be considered to ensure the preservation of key materials.
Employment Agreement Provisions: If the employment agreement explicitly states circumstances under which unpaid suspension is possible, employers can act in accordance with the agreed terms.
The Process of Suspension
When considering suspension of an employee, the process should adhere to New Zealand's employment laws and respect the principles of natural justice. While various employment agreements may have specific provisions regarding suspension, here's a general outline of the process to ensure fairness and compliance:
Double Check Grounds for Suspension: Determine and then double check if the circumstances warrant suspension (refer to the points earlier in this article).
Prepare for Suspension Consultation Meeting: Arrange an 'informal meeting' with the employee to discuss the potential suspension. While representation or support isn't mandatory unless specified in the employment agreement, consider offering the employee the option of having a support person present, though this should not unnecessarily delay the meeting. Have a formal investigation letter prepared outlining the reason for the potential suspension. Prepare notes outlining the key points you intend to convey during the meeting. The choice of words is crucial during the suspension process.
Conduct the Suspension Consultation Meeting: Choose a suitable time and private location to ensure confidentiality, and if at all possible it is advised that you have a witness present during the meeting to take notes; this should not be conducted as a one-on-one conversation. Open the meeting outling the concerns that have come to your attention and continue to advise "I am considering suspending you due to concerns that you might... (insert relevant concerns here)..., but before finalising this decision, could you please share if there are compelling reasons against your suspension?" Listen to any comments the employee may have and assess them before making the decision to suspend. Refrain from discussing the finer specifics of the complaint or concern and speak only in broad terms, as it is a matter to be addressed during the investigation. If necessary, step out briefly to review the employee's response.
Confirm Suspension: If after the consultation the decision is to suspend, inform the employee: "I have determined that it is appropriate to suspend you with full pay until the investigation concludes. Suspension entails leaving the workplace and refraining from reporting for duty unless informed otherwise. If you require anything from the workplace or need to communicate with someone here, please contact me directly. We will maintain your privacy and not disclose your suspension to allow for a smooth return after the investigation. We advise against discussing this with colleagues, except your chosen support person." Follow this decision up in writing.
Departure from Workplace: Depending on the situation, decide whether immediate departure is required or if the employee can leave at the end of the workday. If applicable, ensure the employee returns any keys or other core equipment related to their responsibilities which will be needed by others during their absence from the workplace.
Collect Personal Effects: Allow the employee to gather personal belongings before leaving.
Provide Support: Offer the employee access to support resources, such as employee assistance programs or counseling services, if necessary.
Maintain Communication: Keep the employee informed about the investigation's progress, and let them know when they can expect to return to work.
Privacy Considerations: Respect the privacy of the employee by not disclosing sensitive details about the suspension to others. Respond to inquiries about the suspended individual by stating they are on leave.
Adhering to this structured process helps to safeguard the rights of both the employee and the organisation, ensuring compliance with employment laws while addressing the unique circumstances surrounding suspension.
Employers should always consult their HR or lawyer when navigating suspension matters to ensure alignment with both statutory requirements and the organisation's policies.
Employee suspension is a complex process that demands careful attention to legal, ethical, and procedural considerations. While suspensions without pay should be approached with extreme caution due to New Zealand's employment laws, there are valid circumstances where suspensions are necessary.
Employers must maintain open communication, uphold fairness, and adhere to the principles of natural justice throughout the suspension process. By navigating this process with diligence and sensitivity, employers can ensure that the rights of both employees and the organization are upheld.
Disclaimer This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.