Suspension of employee; when and for how long?
Today, the summary proceedings in which Tom Egbers is demanding the lifting of his suspension by NOS after a year take place. The questions that come into play here are: when can you suspend an employee and isn’t a year of suspension far too long?
Suspension and non-action; the difference
A suspension also prohibits the employee from performing his work. The term suspended, unlike suspension, is used in a situation where there is no culpable action by the employee. However, in case law, the term suspended has effectively the same meaning as a suspension and the same employment-law consequences.
Nature of the measure of suspension
There are two types of suspension. As an order measure or sanction measure.
As an order measure to restore calm in the workplace. The employer must have compelling interests against which the employee’s interests are outweighed.
Another order measure may be that the employer wants to terminate the employment contract and suspends the employee in anticipation of this. It could also be that the employer wants to terminate the employment contract after an investigation and therefore maintains the suspension. Wanting to terminate the employment contract is in itself insufficient for (maintaining) suspension. There must be additional circumstances. The employer must have a good weighty reason for this, e.g. that the employee’s presence has negative consequences for business operations (loss of customers, major damage, justified fear of unrest on the shop floor, fear of frustration investigation).
As an employer, you can also impose a suspension as a punishment. You must then communicate this to the employee immediately (and put it in writing). Again, reasonable and sufficiently serious grounds are required, which outweigh the employee’s overriding interest in continuing to perform his work. After all, a suspension is always diffuse in nature.
Good employment practices
According to established case law, the employer must behave as a ‘good employer’ when suspending or suspending an employee. This means that it would be wise to:
- weigh up all the circumstances of the case and the interests at stake and describe them in the letter setting out the suspension (or suspension from duty);
- indicate that a less severe remedy, such as an official warning or final written warning, will not suffice;
- give an estimate of how long the suspension will last;
- finally, indicate that salary and holiday pay will be paid as long as the suspension continues.
Communication of reason for suspension
The reason must be communicated to the employee immediately. Suspending an employee without giving reasons is unlawful (Amsterdam Court of Appeal 8 March 1974, NJ 1974, 487). By clearly communicating the reason by the employer to the employee, the employee may be able to prove the falsity of the reason or it may appear that the reason given would not be reasonable.
Substantive review
As a basic principle, a ‘good employer’ may only deny an employee the opportunity to perform the agreed work if the employer has reasonable grounds for doing so. Those grounds must be sufficiently serious, given the employee’s, in principle, substantial interest in continuing to perform the stipulated work. This balancing of interests is not tested marginally by the court, as the following standard suspension ruling shows.
A judge will therefore test a suspension on all the circumstances of the concrete case, such as:
- the seriousness of the employee’s conduct;
- whether the employer can be required to allow the employee to return to work;
- the duration of the employment relationship;
- the employee’s position.
Claim for reinstatement
A suspended employee can therefore try to force reinstatement in summary proceedings. The following test applies to a claim for reinstatement:
- First, the weighty interest in suspension must again be made plausible (see above);
- Next, it must be assessed whether granting the reinstatement claim would not lead to an untenable situation in the workplace.
Interim relief judges apply the principle of reinstatement, unless it is plausible that this will lead to an unworkable situation, which is detrimental to the employer’s business.
If the suspension lasts too long, this may be grounds for the court to order the employer to lift the measure. Earlier, the ast Brabant District ECourt ruled that a suspension of more than five months by the UWV, without further measures, was too long. It is therefore also certainly not inconceivable that Tom Egbers will be proved right in the summary proceedings he filed.
Please note that an applicable collective agreement may explicitly specify the circumstances under which an employer can impose a suspension. In addition, the collective agreement may state whether or not the employer is liable to pay wages in the event of suspension as a disciplinary sanction. Incidentally, the basic principle is that the employer must continue to pay wages in the event of a suspension. An exception may be if the suspension falls entirely within the employee’s sphere of risk, for example if he has been taken into (provisional) custody.
Conclusion on suspension
Suspension should not be taken lightly. There are so many legal hooks and eyes to a suspension, that it is wise to seek legal help when you want to suspend or suspend someone. After all, suspending an employee unfairly or for too long can lead to an employment conflict and possibly entitle you to fair compensation.
If you have any questions about suspension or non-action, please contact Richard Ouwerling of LVH Advocaten.
