Partner has been suspended from work, help! ***WON***

[SarEl]

you cannot be suspend without pay unless its gross misconduct and dismissed on the spot

 

ie

 

theft

 

Your employer cannot impose a suspension or lay-off without pay and without your agreement. Suspension with pay, pending the investigation of an allegation of misconduct against you, is often provided for in agreements, but unilateral suspension without pay for economic or disciplinary reasons is unlawful.

 

Sorry - which (a) post and (b) law are you reading?

 

(a) the suspension without pay was contractual - which we discussed at great length earlier in the post. Contracts can certainly (since they ARE agreements) allow for suspension without pay, but, as earlier specified, any such suspension must be for as short a period as possible and "reasonable"

 

(b) you certainly CAN suspend even if the allegation is not gross misconduct. There is no law - only ACAS guidance on this point, and that says that supension ought not to be used unless it is warranted FOR EXAMPLEto allow an investigation to proceed or where the allegations are serious. And I have no idea where you got the idea that ANYBODY can be dismissed "on the spot" because that WOULD certainly be unlawful!

[SarEl]

the Basic Conditions of Employment Act 75 of 1997. .

 

OK - and this quote from SOUTH AFRICAN employment law is helpful - in what way??????

[postggj]

ime talking of dismissal on the spot if you have been caught red handed with your fingers in the till and you offer no objections

 

my mistake on deduction of wages as thats s.13 of the era

crossed word pages

 

on pieces of law ime reading

 

ime not

 

i have an employment law barrister by the side of me at this moment

 

he has been doing a lecture today at college

[SarEl]

I suggest that you check your facts. And I don't care if you have a flotillia of barristers next to you. Dismissal on the spot is always unlawful whether you offer objections or not - it is an automatically unfair dismissal. Even ACAS could (probably) work that out. And the law you are quoting is still South African. It may come as a surprise to your barrister (although not to me) that South African law does not apply in the UK. I understand that South African's feel the same way about UK law!

[postggj]

get off the south africa law

 

i was doing that today and i had an open office document

an error on my part so get over it

 

i know barristers are sadly lacking in people skills but this is an open forum where every body is given the oppertunity to learn, even if posting in error

 

good manners go a long way and you appear to be lacking in them so please be civil in future

[honeybee13]

Handbags at dawn is it then, chaps?

 

Monx, I guess you've been a cagger for long enough to have seen lively debate before, hope it's OK with you.

 

HB

[SarEl]

get off the south africa law

 

i was doing that today and i had an open office document

an error on my part so get over it

 

i know barristers are sadly lacking in people skills but this is an open forum where every body is given the oppertunity to learn, even if posting in error

 

good manners go a long way and you appear to be lacking in them so please be civil in future

 

Lawyers are supposed to read the facts and comment on those - not make them up as they go along. The FACTS of this post are clear and have been discussed at length. You ignored all the facts and decided to give misleading and totally irelevant advice based on the law of another country. The advice given to the OP was inaccurate and instead of recognising this you decided to claim that you were correct because you allegedly had a barrister standing next to you. The reponse was entirely civil, if blunt, and will continue to be so if you continue to insist that incorrect legal advice to posters is correct because you ahve a barrister standing next to you.

 

-----------------------

 

Ps - as a friendly aside, You erroneously quoted South African law because you had an open Office document and inadvertantly (I assume) cut and pasted from it. As you are a student of law, it would only be fair of me to point out that whoever authored this document has directly cut and pasted the entire paragraph from http://www.skillsportal.co.za/page/human-resource/case-law/213077-Unfair-labour-practice-suspension-without-pay

 

That would be plagiarism - assuming that they were talking about South African law; and obviously if they were not it would be both plagiarism and wrong. As a law student, I wouldn't want you to get into any trouble because we both know how very seriously plagiarism is taken by law schools - if you know the author of this document you might want to point this out.

Edited January 21, 2011 by SarEl

[Mash It Up Harry]

I once stood next to a doctor. Does that make me a surgeon?

[MONX]

Handbags at dawn is it then, chaps?

 

Monx, I guess you've been a cagger for long enough to have seen lively debate before, hope it's OK with you.

 

HB

 

 

Its ok HB, Lol yes you are right i have been a cagger long enough to understand that people of differing experience, qualification and understanding use CAG to help other caggers. That is why I always wait for a consensus of opinions and then research as much as possible before making any actual decisions, case in point my post this morning questioning the costs of a tribunal.

 

Postjj we have discussed things in the debt collection forum many times and thank you for your input. I understand how easy it is to give advice in good faith and then realise it was incorrect, dont worry I was well aware that my partners contract allowed for suspension without pay so I was not warm with the glow of hope on that front.

 

SarEL, as always, thank you for your continuing support of clear, concise and reassuring advice.

[MONX]

Ok, recieved email from employer at 10pm on Friday night!

 

They are sticking to their guns regarding the reason for dismissal, they state they have the right to suspend without pay so they are not going to pay him for that time, they apologised (sincerely) for not attending the appointment they made with him (his first disciplinary meeting) on the 4th December and as far as they are concerned they dont have to give him anything, however they are going to pay him his accrued holiday pay....this is despite the fact that they were adamant at the appeal hearing that he was neither entitled to, nor going to recieve holiday pay due to the reason of gross misconduct.

 

We checked today and they have paid his outstanding holiday pay, but this still leaves the question of how reasonable it was to be left for five weeks without pay and then have to fund a 120 mile round trip to attend a hearing. I am going to speak to the pre claim concilliation officer today and tell her what we want, if we get no joy down this route we will be putting in an ET1.

 

Do you see the payment of holiday pay as a guesture of good will or do you think it is in the hope of sidestepping an employment tribunal?

[honeybee13]

Hi Monx. I can tell you're not impressed . I think you're doing the right thing. Don't know about whether the holiday pay makes any difference, but I look forward to learning about it when someone else comments.

 

I still think they're rats .

 

HB x

[SarEl]

I think that they knew they were on a hiding to nothing over the holiday pay and hoped you would go away if they paid up. It still isn't their decision whether the unpaid suspension was reasonable, and an apology costs nothing - if they were genuinely sorry they would have paid up. This is "whites of the eyes" time - you have to face up and stare them down. They already told you that you couldn't have holiday pay, and lo, you can! Do you think you'd have seen that if you hadn't held the line? So just keep going...

[borisbeaver]

Handbags at dawn is it then, chaps?

I'd put my money on SarEl.

[SarEl]

Ah ha. I knew something was nagging at me. Now it isn't exactly the same, but it can be legally argued as relevant.

Wilf Gilbert (Staffs) Limited v Bunn 2008 UKEAT/0547/0

 

In this case the claimant was suspended without pay but there was no contractual clause allowing it (unlike here) but the cliamant won the judgement on the unlawful deduction and went on to appeal for an uplift. And the basis of the appeal is relevant. It was argued that the act of supsnesion without pay is a "relevant disciplinary action" and therefore the employer should have been treated as a disciplinary event in its own right. At the time, the statutory disciplinary code was in place, which meant that the employer had to institute satge one of the code (these days, stage one of the ACAS guidance) before suspending. That means writing to the employee outlining the circumstances which have resulted in the suspension being contemplated and inviting the employee to a meeting. It hasn't been tested in law since the repeal of the statutory guidance - but I think the principle should still hold that suspension without pay is a "relevant disciplinary act" and should, whether or not there is a clause in the contract, not take place without being discussed first with the employee - not just sending a letter saying it has already happened. It's a stretch - but there is uyour "legal hook" to argue the case.

[MONX]

SarEL just got this and I can see the argument, as suspension without pay can be seen as a "punative" measure, however how does that sit with the fact that his contract states:

 

disciplinary policy and procedure

 

2.2 suspension

 

221 in the event of an allegation of serious or gross misconduct, an employee ay be immediately suspended from work without pay.

222 Suspension without pay is a temporary measure to assist in the clarification of the facts, collation of the details and to avoid a potentially difficult situation or to faciltate an unterrupted investigation process to take place.

223 Any decision to suspend will be confirmed in writing and such written confirmation will state that the nature of the suspention is precautionary, not disciplinary pending the outcome of the investigation proceedings.

224 suspension is a neutral act which does not imply guilt or blame and will be as for as short period as possible.

 

Obviously I will try the argument, any amunition in my camp will be greatly appreciated. I just think they will counter that with the argument that it is a of a "precautionary not disciplinary nature" and a "neutral act".

[honeybee13]

Hi Monx. But ACAS guidelines stipulate that the timings should be 'reasonable', don't they? SarEl will be able to tell you if that's worth a try.

 

HB x

[MONX]

Hi Monx. But ACAS guidelines stipulate that the timings should be 'reasonable', don't they? SarEl will be able to tell you if that's worth a try.

 

HB x

 

Hi HB

 

Yes that was my main argument as to the five weeks of suspension without pay being "unreasonable". I know acas state that:

'If your employment contract allows you to be suspended without pay, your employer can do so, so long as they are acting reasonably. If your employment contract does not say that your employer can do this, your employer may still be able to suspend you, but with pay. To make it clear that this isn't a punishment, the suspension will be on full pay in most cases.

You keep your employment rights while suspended. If you don't get the right pay you may be able to make a claim to an Employment Tribunal for 'unlawful deduction from wages'.

 

SarEL's example is looking at a period of suspension without pay being seen as a separate disciplinary action and as such should come under the acas guidelines. I am going to use the argument no matter as I said, any thing that looks as though it would aid my argument is definately a welcome contribution, i am just asking if they can counter it with what is said in the contract about it being a precautionary rather than disciplinary act.

 

The period of suspension without pay is definately a rod for their own back, they say it should take "as short period as possible", they waited two weeks before even arranging the first disciplinary meeting (which they didnt have the decency to attend or cancel). This was neither fair nor resaonable because this didnt uphold their own part of the contract for it to take as little time as possible.

 

Cheers!

Monx

[SarEl]

Yes, you have got it. On both counts. Nice going!!!

 

I did say that I am not 100% certain that the case law can apply - but I'd go for trying it because it is damned close! As I keep telling people - just because it's in the contract does not ALWAYS mean it is legal. They had two disciplinary hearings scheduled, so there was NO invetsigation going on after the first one was cancelled due to snow - so why unpaid suspension after that? The policy says "may be suspended without pay" - not "will be". Another crack. It is discretionary (because may is a conditional clause!) so in what conditions is it, and when isn't it? Why was the matter not discussed with the employee to see whether it was required - or whether this would be a disciplinary action in itself - in accordance with the rulings of the EAT?

 

If they give up and surrender, then fine - no worries. If they don't, throw the kitchen sink at them. And there are now a lot more cracks in the argument!

[Sidewinder]

Absolutely right. Suspension without pay is punishment not a mere precaution and should not be used unless a preliminary investigation decides that it is warranted. Add that argument to the unreasonable period of the suspension and I think you have more than enough to take to a Tribunal.

 

If they look at the case against them it is far more likely that they will look to settle than risk losing. The manpower and admin costs alone in defending what will appear to be a plausible ET action will probably make it more cost effective to them to just pay up!

[MONX]

Well today is D day so to speak.

 

The ACAS conciliation officer is ringing the other half's ex employer today to negotiate.

 

I wished her good luck as I emagine she will very likely recieve a hostile reception. She has agreed that if they (unlikely) decide to settle that she will come back to us and not agree anything without our tacit agreement. Although she is aware that we expect at the very least five weeks pay, expenses for the trip to Sheffieild and back and a reference.

 

I was thinking about this last night (for a change lol), no matter what we have already won, we have had holiday pay that they were determined he was not entitled to, even if we went as far as a tribunal and lost, it will still have cost them considerably and we still got something out of them.

 

The other half is in a job interview as we speak and Ive got everything crossed for him.

[honeybee13]

Hi Monx, do you have any news for us please? I really hope it went well today on both counts. You've done brilliantly and should be congratulating yourself on what you've achieved so far.

 

HB x

[MONX]

No news as yet, I assume the concilliation officer will be given the run around for a couple of days and then told that they dont want to negotiate but we will still be withing the three months so I will just bank in the ET1 I'm keeping warm in my saved documents!

 

As to the job interview, the other half felt it went well, the first question they asked him was "why did you leave your last job" he told them the truth and they didnt seem fazed or changed tack once he finished explaining it so we can only hope that it went in his favour. They are going to let him know today, if he gets it he starts monday!!!!!

 

Cheers!

Monx

[SarEl]

TBH - even if the employer capitulated on the spot, ACAS have a huge workload and it could take days to get back to you!

[MONX]

Oooh exitement....we missed the post on Monday and came home to one of those cards from the postie saying they tried to deliver a letter that needed signing for, well of course I was thinking it was from his employer and it was in reply from the call from ACAS, despite the fact that we hadnt heard from her.

 

All monday night I mused at what it could be, what could possibly be the reason for a letter so soon after the phone call from ACAS...i started to think that perhaps they realised they were being totally unjust and unreasonable and didnt want the fuss and hassle of a tribunal and were going to pay us what they owe, or they were going to tell us to go away and play with the buses! Lol I even had a daft thought that they would give us a bit extra for the stress and strain of having to do all of this....(in one of my more optomistic moments lol).

 

Anyway, just to make sure on Tuesday morning i emailed acas and asked if there had been any news, she replied instantly and said that she had emailed his employers on Thursday and would give them until mid week this week to reply, she will follow it up and let us know as soon as there is something to tell.

 

The letter was indeed from his employer, on the original outcome email and letter regarding the outcome of the appeal they didnt really say that they had considered all the things we brought up in the appeal letter, it just said that there had been a finding against us, this new letter sets out all the points "considered" and that didnt feel we provided any new evidence or mitigation in order for it to be considered for a lesser penalty and that she upholds the decision made by manager who took the disciplinary meeting. As to the missing pay they say that "it is not a legal requirement to pay wages during suspension". There was no mention regarding the expenses for travelling to Sheffield or why they thought it was reasonable to make us fund that journey after five weeks with no pay.

 

So not only do they take three weeks to inform us of the decision but the one they sent us was missing the main point as to the outcome! They really are something special...if it were me and i was dealing with this from an employers side of things, i would make sure that the i's were dotted and the t's crossed. I havent made my mind up if its a case of really poor administration or just an absolute lack of concern as to how this will look if an independant body was to see how little they regard employees rights .

 

So its back to the waiting game, i am bit concerned that the deadline for getting the ET1 (if required) in, is looming large and any further delay on their part would be very much in their favour. Well no matter what, if there is no answer from them by the end of next week I will be putting it in...I am right that I can withdraw it if an agreement is made?

[SarEl]

Yes that is correct. As I suggested earlier, there is no reason not to make a claim - ACAS would have been involved in either case, and I find that ET1's do have a tendency to concentrate employers minds.