If you suspect any employee of improper behaviour it is tempting to suspend them while you investigate the allegations. This could land you in hot water unless you have incorporated a power to suspend in their employment agreement.  An employer does not have a right to suspend an employee from work unless there is a specific agreement or statutory right to do so e.g. during a strike.  According to the Employment Court, the employer’s duty to maintain the employment relationship extends not only to remuneration but also to allowing the employee to do his or her work.  Any unlawful ‘suspension’ of the employment contract will be a breach of that agreement.

If there is no power of suspension, an employer will have to investigate the allegations while the employee remains in the workplace.

If an employee is suspended unlawfully then they can raise a personal grievance with the employer.  A recent unlawful suspension case resulted in an award of $45,000 to the employee.

However, there are very limited circumstances in which a suspension on pay, even without a contractual right, will be lawful.  That is when the suspension is by consent, where the work is fluctuating and temporarily unavailable and when an employee becomes temporarily unable to perform their employment.

Even where a right to suspend an employee does exist the process must still be procedurally fair.  The employee must be given an opportunity to ‘avert the suspension in advance’, and be heard about the suspension decision.  Issues that must be addressed include whether there should be a suspension, the likely length of it and whether it should be on pay.  Redeployment to another area on a temporary basis may remove the need to suspend by taking the heat out of a situation.  Employees are entitled to have a support person present when they are spoken to and you should try to get their agreement to the proposed process.

Employers must carefully plan any proposed use of suspension rights; first to ensure that such rights exist in regard to a particular employee, and then to make sure that the suspension process is correctly carried out.

Failing to do so can be an expensive mistake.