Is an unpaid suspension an acceptable disciplinary sanction?Posted in : Seamus Says - Employment Law Discussion on 5 January 2018
Q. "We have a range of disciplinary sanctions. Other than warning letters and ultimately dismissal in our contracts of employment, are unpaid suspensions still acceptable as a disciplinary sanction? What about disciplinary transfers or demotions?"
Keywords: Disciplinary Policy; Disciplinary Sanctions; Transfers; Demotions
So the second question we have here, Seamus, is, "We have a range of disciplinary sanctions. Other than warning letters and ultimately dismissal in our contracts of employment, are unpaid suspensions still acceptable as a disciplinary sanction? What about disciplinary transfers or demotions?" The alternative in these cases would be a dismissal in the most extreme of those.
Seamus: I think the important document to come back to whenever you're dealing with any disciplinary is obviously the disciplinary policy and procedure the employer has in place. Really, that should set out all the possible sanctions that are open to the employer. You'll typically see in the disciplinary policy they'll maybe categorise examples of minor misconduct, gross misconduct.
Really, we're looking at the more serious sanctions here probably of gross misconduct that will be liable to dismissal or summary dismissal, so it's important that there is a range of options open to the employer there. I think the first thing that I would say on that, sometimes I will see a lot of disciplinary policies that will simply have options of verbal warning, first written warning, final written warning, dismissal with notice or summary dismissal. You'll not see so much the options of whether the option of transfer or demotion.
So bringing it back, maybe have a review of your policy at this stage and make sure you do have the option of doing that. So if it's not in the policy, I think it's a problem for you. Where it is in the policy, obviously, the statutory dismissal procedure has to be followed. So we're talking about our one, two, three procedure here. You should be ticking the boxes in terms of the very general things that are required, and the minimum requirements required under the law.
Scott: One of those minimum requirements is you write to the person and tell them they could be dismissed.
Scott: That's a breach if you don't do that. In this situation here where you have alternatives to dismissal which are higher than a warning, they have to go into that later as well.
Seamus: Absolutely. So the employee should be clear what the allegations are against them and what the possible outcomes could be. Sometimes clients will say to me if we put that in the letter, does it not mean that we completed that already. You're saying no, these are the options and the employee has to be aware of the severity. One of the ways of getting the point across is to tell them what the sanctions could be. I haven't advised in a case where we've put someone on paid suspension as a disciplinary outcome.
Certainly, we deal with suspensions where the investigation or disciplinary is ongoing. Again, that's always the exception rather than the rule. There should be specific circumstances for putting someone on suspension where that's ongoing. But I am aware of cases in the past and case law in relation to where an employer has deemed an unpaid sanction for maybe a week or a month. That's acceptable, as is a disciplinary transfer.
Demotions and transfers will come up where there's maybe been issues of harassment and it's not possible for the employees to work together any longer. If there's a finding that one of the employees has been doing harassing, rather than dismissal, they might say, "We're going to transfer you across. Demotion is also a perfectly acceptable outcome as well." Again, you must have it in your disciplinary policy and procedure.
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