SUSPENSIONS FOR EMPLOYERS

You can only suspend an employee when you have clearly given yourself that right via your employment agreements. While difficult to establish, you may also be able to rely on past practice to show that you have the right to suspend employees even without an agreement – if so, we recommend you consult an HR lawyer to confirm whether this is indeed the case.

We always advise our employer clients to avoid using the term suspension, and to use the term administrative leave instead.

If you operate with unionized employees, it is common for the collective agreement to give employers the right to suspend employees on various grounds.

Administrative leave and suspensions are similar – when you place an employee on either, they are removed from the workplace. However, their nature is different in that administrative leaves are not disciplinary in nature, while suspensions are. We always recommend referring to employees who are removed from the workplace as being on administrative leave to avoid suggesting that they have already been found guilty of misconduct. This is important in situations where you are investigating an employee, as they should be on administrative leave while their conduct is assessed to determine whether disciplinary action is required.

That depends on what your employment agreement says, though in some situations you will have to provide pay. For example, if you have the right to place your employees on administrative leave as a disciplinary measure, this may be paid or unpaid. However, if the employee is the subject of an investigation, we always recommend putting them on paid administrative leave.

In that case, you can try to rely on a past practice, and it is advisable to seek legal advice to confirm whether there is a strong case for that. Otherwise, in the absence of a contractual right, any suspension, whether paid or unpaid, exposes you to a claim for constructive dismissal.

Written employment agreements are your friend. You can give yourself the right to put your employees on administrative leave as part of investigations or disciplinary procedures, in accordance with your organization’s policies and practices. You can also give yourself the right to place employees on leave without pay as a disciplinary measure. With a written agreement in place, you can reserve the right to put employees on leave in accordance with the agreement, and not have to worry that it is a constructive dismissal.

We can help employers understand their rights and obligations regarding suspensions. We can also assist them and help them prepare written employment agreements and policies giving them the right to put employees on administrative leave, with or without pay. Remember, the information provided here is a simplified summary, and it’s essential to consult with legal professionals for specific advice related to your situation.