Suspending an employee

Suspending an employee. Unfortunately, this happens from time to time. An employee who violates a company rule, exhibits undesirable behaviour or has already received several warnings may be (temporarily) suspended by the employer. But how does this disciplinary measure work and in what situations may an employer suspend someone?

Exemption from work

Suspension means that an employee is (temporarily) exempted from work by the employer. In effect, suspension means that the employee is suspended. Incidentally, a suspension is the same as suspending an employee, only the name “suspension” has a more negative connotation and may sound more like a punishment. Legally, all expressions of non-activity are the same.

Conditions for suspension

In principle, an employee has the right to work. An employer must therefore provide a valid or good reason for a suspension or suspension from work. In order to suspend an employee or exempt them from work, a number of conditions must be met.

• The employee has committed a serious, grave offence or misconduct or seriously culpable behaviour

• The employee has become redundant as a result of a reorganisation

• There is a conflict between employees

• A less severe measure, such as an official warning or final written warning, is not sufficient

• All circumstances of the case and the interests at stake have been weighed before the employee is suspended

In addition to a violation or misconduct by the employee themselves, a reorganisation can also be a valid reason for suspension from work. During the period in which the employee is suspended, the employer is obliged to continue paying their salary. This obligation only lapses if other agreements have been laid down in the collective labour agreement or employment contract. The employer is obliged to send the employee written confirmation of the suspension.

When is an employee considered to be performing poorly?

An employee is considered to be performing poorly if he or she consistently fails to meet the reasonable requirements of the job, despite clear feedback and sufficient guidance from the employer. The employer must be able to demonstrate that the performance is unsatisfactory, that this has been discussed with the employee in a timely and concrete manner, and that a realistic opportunity for improvement has been offered. Poor performance is therefore more than a one-off mistake or a difference of opinion; it is a demonstrable pattern in which the employee shows insufficient improvement even after receiving support. It is essential for employers to document the improvement process properly so that they are in a strong legal position in the event of a dismissal procedure.

Partial incapacity for work

Insufficient or poor performance is therefore a valid reason for an employer to suspend an employee. However, before taking this disciplinary measure, the employer must have informed the employee several times of their insufficient performance in order to give the employee the opportunity to improve.

Suspension is usually only imposed when the performance of the employee in question has such an impact that it affects business operations. This also applies to inadequate performance due to partial incapacity for work. If this causes work to come to a standstill or hinders business operations, a company may suspend the employee.

How long can the suspension last?

The duration of an employee’s suspension varies, depending on the dispute and the investigation into it. However, the suspension or non-active status may not last longer than is strictly necessary. The conduct must also be of such a level that the period of suspension is proportionate to the measure. The Civil Code does not specify a maximum period for the duration of the exemption from work. In general, this period takes approximately two to three weeks from the moment an employer decides to take the measure.

Cooling-off period exemption from work

The period after the employee has been suspended can be used as a cooling-off period or by the employer to conduct further investigation. A thorough investigation of the conflict and identifying the possible cause can provide a basis for resolving and discussing the conflict. Suspension may also result in dismissal.

Dismissal after suspension

Dismissal after suspension occurs in many cases. Whether this happens depends on the situation and the extent to which trust has been betrayed and the working relationship has been disrupted. Both the employer and the employee are expected to behave appropriately. A degree of integrity is expected. If that integrity and bond of trust are lost, dismissal is often the obvious outcome.

An employee who disagrees with the suspension can initiate summary proceedings before the subdistrict court with the aim of returning to work, i.e. demanding reinstatement. During the proceedings, the court will assess whether the employer has met the conditions for suspension and whether the suspension is justified. If the court rules that the suspension from work is unlawful, this often leads to a further disruption of the employment relationship or even to the termination of the employment contract. A magistrate may also rule that the employer owes the employee fair compensation.

Exemption from work by mutual consent

Suspending an employee does not always have to be a disciplinary measure, but can also be agreed in consultation with the employee. Exemption from work also occurs, for example, when a company and an employee decide by mutual agreement to terminate the employment contract. In practice, it is common for both parties to opt for suspension by mutual consent – the legal term for this is exemption from work – for the notice period of the permanent employment contract.

Provision in collective labour agreement or employment contract

Do you want to minimise the risks before, during or after a period of non-activity? Include a provision in the collective labour agreement or employment contract regarding suspension or non-activity. A solicitor for entrepreneurs at Fruytier Lawyers in Business can provide you with professional assistance in this regard. Our solicitors are or have been entrepreneurs themselves and have years of experience in providing legal assistance in employment law issues and taking appropriate disciplinary measures. They are familiar with the questions and situations you face and have the answers.

For more information about suspending an employee, but also about summary dismissal and other questions concerning employment law and company law, please feel free to contact one of our specialists.

Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp