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The art of suspension

Updated: Mar 29, 2023

When it comes to suspending an employee from work, there are a number of traps for the unwary manager.

First of all, there are only limited reasons for suspending an employee in New Zealand. The Employment Relations Act 2000 only addresses suspensions related to industrial action.

This blog is NOT looking at addressing that type of suspension.

The second point to make is that suspension cannot be done on a whim and is only possible if suspension is allowed for in the Employment Agreement or by policy and procedures which are part of the Employment Agreement.

What this means is if you don't have a suspension clause in your employment agreement and you don't have a policy and procedure on suspension, then you may not be able to suspend the employee. We will come back to this later (see alternatives to suspension)

The third point to make is that suspension is not a disciplinary act. You and the employee must be clear that when suspension is being considered that this does not imply that there has been misconduct or that the complaint(s) or allegation(s) raised are justified. Suspension is a neutral act which enables the employer to conduct an investigation without pressure to act in any particular way and for the employee to not suffer any loss of pay or benefits.

The next point is if you are considering suspension then you must discuss the proposal to suspend with the employee BEFORE you make any decision to suspend. You must listen to and consider the response of the employee while keeping an open mind and take your time to consider what the employee says.

When can you consider suspension?

As stated above, you can only consider suspension if the employee's employment agreement and/or your company policy and procedures provide for suspension to occur.

An employer can only suspend an employee in limited circumstances, which include:

  • where an employee’s behaviour is under disciplinary investigation and having them at work may compromise the investigation or cause further issues, in which case the reason for the suspension may be to protect the workplace during the investigation and/or to protect the employee from further accusations.

  • where the employee 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/alcohol or is not in a fit emotional state to do their job safely.

How to approach a proposal to suspend

You must inform the employee that you are proposing to suspend them, on full pay, and state the reasons why you are proposing the suspension. You need to invite the employee to give you feedback on this proposal and an opportunity to state any reasons why they should not be suspended. You need to give the employee reasonable time to consider the proposal and prepare their response, including the right to have a support person or representative with them when you discuss the proposal to suspend.

You may offer the employee special paid leave to have time to consider the proposal and suggest that they meet with you the following working day to give their response to the proposal. Note, the employee will need to agree to this special paid leave.

You must listen to what the employee has to say and be prepared to not proceed with the suspension if they can allay you of the concerns that prompted the proposal to suspend.

If you confirm the suspension, do so in writing, and be clear that the suspension does not mean the allegations against the employee are proven. Be clear on the timeframe for which the suspension applies and what the employee may or may not do while on suspension.

When discussing the proposal to suspend, be clear that you are not discussing the underlying allegation(s)/complaint(s) against the employee. Those allegations/complaints will be addressed separately - they may even be subject to an investigation where the employee will receive all the information about the allegation/complaint so they can give a fully informed response as to what they have been alleged to have done. The suspension meeting is limited to discussing the reasons why the employee should or should not be suspended.

Traps to avoid.

  • Do not suspend an employee if the employment agreement does not provide for suspension and you do not have a policy and procedure to address suspension.

  • Do not suspend an employee without first giving them an opportunity to comment on the proposal to suspend. The proposal needs to explain why you are proposing to suspend the employee.

  • Do not make a decision to suspend as soon as you have heard back from the employee. You must take time to genuinely consider the employee's response to the proposal to suspend.

  • Do not suspend the employee without pay unless the employment agreement provides the ability to do so.

Alternative to Suspension

If you do not have the ability to suspend, you can still propose that the employee take a period of special leave on pay. This special leave does not get deducted from the employee's other leave entitlements. In order to go down the special leave path, you still need to get the employee to agree to take the special leave.

Special leave on pay can also be considered instead of suspension even when the employment agreement and/or your policy and procedures provide for suspension. This can also overcome the stigma of being suspended and avoids the suspension being viewed as a disciplinary action.

Contact McKone Consultancy if you require any assistance when considering suspending an employee.

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