Suspension in Employment Relationships – Conditions, Duration, and Employee Rights

Suspension is a temporary measure that allows the employer to remove an employee from their position while a possible serious matter is being investigated. The rules on suspension are regulated by the Working Environment Act § 15-13 and are closely linked to the rules on dismissal. Suspension may be necessary to prevent continued misconduct, ensure objective investigations, or protect third parties, but at the same time, it is subject to strict conditions to protect the employee's rights.

Key purposes of suspension

Preventing continued misconduct

An immediate suspension may be necessary to prevent the employee from continuing to breach the employment contract. This is particularly relevant in cases where the misconduct may cause the business financial loss or damage to its reputation.

Ensuring objective investigation

Suspension allows the employer to investigate the actual circumstances without the employee being able to influence the process, for example, by removing evidence or influencing witnesses.

Protecting third parties

The interests of colleagues, customers, users, or the public may in some cases warrant the temporary removal of the employee from the workplace while a serious matter is being investigated.

Legal conditions for suspension

1. The suspicion requirement

The first condition for suspension is that there is "reason to believe" that the employee is guilty of conduct that may warrant dismissal. This means that there must be a concrete suspicion of behavior that qualifies for dismissal under the Working Environment Act § 15-14.

Note that the suspicion requirement does not imply a requirement for a preponderance of the evidence. It is sufficient that the employer has concrete grounds to believe that the employee may have committed actions that could potentially justify dismissal.

2. The necessity requirement

The second condition is that the "needs of the business suggest" suspension. This represents a necessity requirement, where the employer must assess whether suspension is required to safeguard the legitimate interests of the business.

In making this assessment, the employer must:

• Consider whether the employer’s interests can be protected by less intrusive measures

• Consider whether reassignment is an alternative to suspension

• Take into account whether the employee's interests are reasonably safeguarded

The possibility of reassignment must be evaluated based on factors such as:

• The employee's position

• The size of the business

• The employee's qualifications and suitability

• The nature and seriousness of the suspicion

Procedure and duration

Continuous evaluation

The employer is obliged to continuously assess whether the conditions for suspension are still met. If the conditions are no longer present, the suspension must be lifted immediately. This underscores the temporary nature of the suspension.

Time limitation

Suspension is intended as a short-term measure while the employer conducts necessary investigations. The law, therefore, sets a general rule that suspension cannot last longer than three months.

Suspension beyond three months must be justified by "the special nature of the circumstances." This may, for example, be relevant when criminal charges have been brought against the employee, and the employer must await the outcome before a final decision on the employment relationship can be made.

The legal effect of suspension

The employee's obligations

Upon suspension, the duty to work is temporarily ceased, but the employment relationship still exists. This means that:

• The employee is still subject to a duty of loyalty to the employer

• The duty of confidentiality remains unchanged

• Other obligations in the employment relationship, apart from the duty to work, remain

Wages during suspension

The employee is entitled to "the salary they had at the time of suspension." This includes:

• Base salary according to the employment contract

• Fixed and variable allowances that would have been paid according to a fixed schedule

The Supreme Court clarified in HR-2020-1157-A (the Extra Shift Case) that wages for extra shifts beyond those specified in the employment contract are not covered by the wage obligation during suspension. This applies to casual work beyond fixed working hours not included in a fixed schedule.

Suspension versus dismissal

Suspension, unlike dismissal, is a temporary reaction that does not terminate the employment relationship. A suspension decision that is later withdrawn will generally be less damaging to the cooperative and trust relationship between the parties than a dismissal decision that is withdrawn.

In some cases, it may therefore be in the employee's interest that the employer uses suspension rather than making a hasty dismissal decision without sufficient investigation of the circumstances. Suspension can allow for a more thorough assessment and thus prevent unwarranted dismissal.

Consequences of wrongful suspension

If the conditions for suspension are not met, the suspension is wrongful. In such cases, the employee may be entitled to compensation for economic and non-economic losses.

A lawful suspension can, however, become wrongful if the employer fails to continuously assess whether the conditions are still present, or does not lift the suspension when the conditions are no longer fulfilled.