Suspending an employee

Suspending an employee. Unfortunately, it happens from time to time. An employee who breaks a company rule, displays 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 situation may an employer suspend someone?

Release from work

With a suspension, an employee is (temporarily) released from work by the employer. In fact, suspension means that the employee is suspended. Incidentally, a suspension is the same as suspending an employee, only the name of a suspension has a more negative character and may sound more like a punishment. In legal terms, all expressions of a non-action are the same.

Conditions of suspension

In principle, an employee has a right to work. An employer must therefore provide a valid or good reason when suspending or suspending an employee. For an employee to be suspended or released from work, a number of conditions must be met.

• The employee has been guilty of a serious, serious violation or misconduct or seriously culpable behaviour;
• The employee has been made redundant in a reorganisation;
• There is a conflict between employees;
• A less severe remedy, such as an official warning or final written warning, does not suffice;
• All circumstances of the case and the interests at stake were weighed before the employee was suspended.

Besides a violation or misbehaviour by the employee himself, a reorganisation can also be a valid reason for a suspension. During the period in which the employee is suspended, the employer is obliged to continue paying wages. This obligation lapses only if the collective agreement or employment contract stipulates otherwise. The employer is obliged to send the employee written confirmation of the suspension.

Partial work disability

Insufficient or poor performance is thus a valid reason for an employee to be suspended. However, before proceeding to this disciplinary measure, the employer must have informed the employee several times of the inadequate performance in order to give the employee room to improve himself.

A suspension is usually only taken when the performance of the employee in question is of such an influence that it affects the management of the company. This also applies to insufficient performance due to partial disability. If this causes work to come to a standstill or hinders business operations, a company may suspend the employee.

How long may the suspension last?

The duration of suspending an employee varies, depending on the dispute and its investigation. However, the suspension or non-action should not last longer than strictly necessary. Also, the conduct must be of 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 exemption from work. Generally, this period takes about two to three weeks from the time an employer decides to proceed with the measure.

Cooling-off period exemption from work

The period following the employee’s suspension can be used as a cooling-off period or used by the employer to conduct further investigations. Investigating the conflict in detail and finding out the possible cause may provide grounds for the conflict to be resolved and talked out. 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 employer and employee are expected to behave as they should. A degree of integrity is expected. If that integrity and bond of trust is gone, dismissal is soon obvious.

An employee who does not agree with the suspension can initiate summary proceedings before the subdistrict court with the aim of getting back to work, i.e. claim reinstatement. During the proceedings, the judge will assess whether the employer has met the conditions of the suspension and whether the suspension is justified. If the judge rules that the suspension of work is impermissible, this usually leads to a further disruption of the employment relationship or even to dissolution of the employment contract. A subdistrict court may also rule that the employer owes the employee fair compensation.

Release from work by mutual consent

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

Arrangement in a CAO or employment contract

Do you want to minimise your risk before, during or after a suspension? Include a regulation in the collective agreement or employment contract around a suspension or non-action. A lawyer for entrepreneurs from Fruytier Lawyers in Business will help you with this professionally. Our lawyers are (have been) entrepreneurs themselves and have years of experience in providing legal assistance with employment law issues and taking appropriate disciplinary measures. They know the questions and situations you face and have answers to them.

For more information on suspending an employee, as well as summary dismissal and other questions relating to employment law and company law, please contact one of our specialists without obligation.