Suspended Animation

I enjoyed receiving a good amount of feedback on my previous post, about managing sexual harassment complaints in the workplace.  One offline commenter challenged me on my comments around suspension of an employee when he or she faces an allegation of sexual harassment.  I was asked “would you really keep the victim and abuser working in the same place”.  Good question!

In defense of my view, I responded that the Employment Court takes a relatively dim view of suspension, describing it as a “drastic step” and examining very carefully the circumstances giving rise to it when challenged.  Certainly, before suspending a person facing an allegation, careful consideration would need to be given to the alternatives. 

Suspension is a temporary measure designed to keep an employee away from work.  It is not provided for generally in the law – there is a right to suspend striking employees (only in that specific context) and there is a right to suspend under the Heath and Safety at Work Act where an employee represents a real risk to the health and safety of either themselves or others.  Apart from that, suspension is only available if the parties have agreed in advance to that possibility – ie there is a clause to that effect in the employment agreement. 

Because in general terms suspension is a contractual remedy, it is hard to provide general advice on what must occur before a person can be suspended – this can turn on the terms of the contract.  However, it is generally agreed that suspension can only be considered where an employee is facing an allegation of conduct that is capable of amounting to serious misconduct which would justify dismissal. 

Even then, it is usually only justified if the suspension is necessary to protect someone from harm – this may be a person from further harassment, any person from poor health and safety practices, or ongoing theft of resources or information.  The important point here is that suspension is not designed to be punitive – it can not be used to punish an employee for perceived wrongdoing. 

The area of greatest controversy is whether an employee has a right to be heard before a decision is made to suspend.  The Employment Relations Act expressly provides that an employer proposing to make a decision that will have an effect on an employee’s employment must give information to that employee and offer a reasonable opportunity to respond.  In the case of suspension, it is usually accepted that this process can be abridged, by allowing a shortened period to respond (say a number of hours), before making a decision. 

My preferred approach is to provide an employee with information relating to the allegations and the proposal to suspend (with reasons – usually that suspension is necessary to protect a person or prevent interference with an investigation), then invite them to go home for the rest of the day (taking “paid special leave”) to consider their response to the proposal and seek advice.  I would then reconvene at the end of the day to hear the employee’s response to the proposal and make a decision. 

In making that decision, the employer should consider all alternatives to suspension, and this may differ depending on the workplace.  For example, in a large, multi-site workplace, it may be possible to re-deploy an employee to another physical location, or to make changes to the employee’s role to prevent further harm – eg by removing financial authorities, or moving to ‘back room’ duties. 

Bearing in mind the Court’s distaste for suspension, in my view it is best to keep a period of suspension short, or if that is not possible, build in review occasions for the suspension.  If a disciplinary meeting can be convened to address the substantive allegation within a short period than this may not be necessary.  However, if an investigation extends in to weeks or even months, the suspension should be revisited and alternatives explored again. 

So, to go back to the question of whether I would suspend an employee facing an allegation of sexual harassment, my answer remains that suspension can be difficult to justify.  However, it could be justified in circumstances where there is apparently strong evidence of sexual harassment (I would be looking for a serious event), and there is a risk either to the alleged victim, or evidence that the employee accused would interfere with an investigation into the matter.  Before deciding to suspend, I would rule out alternative safety measures – in a small workplace I think suspension would be more likely than in a large one where the parties could be effectively separated.  I would give the employee an opportunity to address me on these points before making the decision and I would review it on an ongoing basis.