Suspension is quite commonly applied in workplaces. This article examines the legal principles that govern this practice.

Definition and use

Suspension gives the employer an opportunity to carry out investigations into possible misconduct.

fired man cartoon illustration

In the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR, the court held that: –

A suspension therefore is ultimately a right due to an employer who on reasonable grounds suspects an employee to have been involved in misconduct, or poor performance or physical incapacity and wishes to remove such an employee from the work place to enable further investigation without subjecting the employee to further commission of more acts of misconduct, under performance or the conditions leading to incapacity.

In Donald C. Avude v Kenya Forest Service [2015] eKLR, the court quoted from the case of Cabiakman V Industrial Alliance Life Insurance Co. [2004] 3 S.C.R. 195, 2004 SCC 55 where it was held that: –

…administrative suspension is “a preventive measure which can be taken when the interest of the employer’s business require it, even in the absence of an act made by the employee while working.

Legal foundation for suspension

The Employment Act, 2007 makes no provision for suspension; what then is the legal foundation of this practice?

In Timon Otieno Mboga v Kenya Forest Service [2015] eKLR, the court held that: –

The Employment Act, the Industrial Court Act or any other Labour Law for that matter, do not provide for suspension.  The Employment Act however provides at Section 12 that every employer which employs more than 50 employees must have a statement on disciplinary rules…Issues such as interdiction and suspension therefore ought to be provided for in the statement of disciplinary rules.

The position that was upheld for a long time was that an employer who wishes to utilize suspension should ensure that suspension is provided for it the organization’s policies. Recently, the Court of Appeal has held that an employer has the right to suspend an employee (Charles Muturi Mwangi vs Invesco Assurance Co. Ltd, Civ Appeal No. 270 of 2017). 

In Shedd Dennies Simotwo v Speaker, Narok County Assembly & another [2015] eKLR, the court held that: –

For a suspension of an employee to be lawful, it must have either a contractual authority or statutory underpinning (see Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd (2015) eKLR and McKenzie v Smith (1976) IRLR 345).

The practice of sending employees on compulsory leave (which is then offset from the employee’s leave entitlement) is not lawful. Annual leave is a right which should not be applied for any other purpose other than for the employee to rest; it should not be used for the employer’s administrative purposes. See David Wanjau Muhoro v Ol Pejeta Ranching Limited [2014] eKLR.

Should an employer communicate the reasons for the suspension?

No, this is not necessary. See Gregory Otieno Owouth v Mumias Sugar Co. Limited [2016] eKLR

severance pay

Should suspension be on full pay or half pay or no pay?

The position is not settled. The different views are: –

  • As long as an employee has not been terminated, the employee is entitled to their full pay. Those who adopt this position argue that a person is “innocent until proven guilty”;
  • The decision on whether or not to pay the employee during the period of suspension depends on the outcome of the disciplinary proceedings;
  • The salary can be withheld if permitted in the organization’s policies; and
  • Suspension should be for a defined period if it is to be with no pay.

In Donald C. Avude v Kenya Forest Service [2015] eKLR, the court held that: –

…suspension should be for a determinate period where such suspension is without pay. Otherwise it would constitute inhuman treatment …

In Paul Ngeno v Pyrethrum Board of Kenya Ltd [2013] eKLR, the court held that: –

Thus, the court holds that whether an employee will be paid during the period of interdiction or suspension will depend upon the outcome of the disciplinary proceedings.  It would be unfair labour practice to deny an employee payment during the period of interdiction or suspension if at the end of the disciplinary process the employee is found innocent.  Similarly, it would be unfair labour practice for the employer to be required to pay an employee, during the suspension or interdiction period if at the end of the disciplinary process the employee is found culpable…

In Thomas Sila Nzivo v Bamburi Cement Limited [2014] eKLR, the court held that: –

No provision under this law allows the Employer to deny a suspended employee his monthly salary …The suspension without pay, offended the principles of Fair Labour Practices and Protection of Wages.

In Peterson Ndung’u & 5 others v Kenya Power and Lighting Company Limited [2014] eKLR, the court held that: –

The Court’s understanding of the practice of withholding of Employee’s emoluments during the disciplinary process … on close scrutiny, indeed has no foundation in the Employment Act.  It has no legal validity.

It is difficult to justify the practice, as there is no specific legal provision under the Employment Act 2007, suggesting an Employee whose contract of employment is still running, should forfeit his monthly salary while on preventive or administrative suspension.

See also: –

  • Mariko Oluoko Kanga v Kenya Railways Corporation [2014] eKLR;
  • Wilson Shisia Nyangweso v Church of God in East Africa (K) [2016] eKLR; and
  • Thomas Maganjo v Mwirua Farmers Co-Operative Society Limited [2015] eKLR

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What’s the maximum duration of suspension?

Our courts have held that 6 months should be the maximum suspension period and that an indefinite or longer period amounts to constructive dismissal for which an employee may sue for reinstatement or damages.

In Joseph Ndung’u v Mastermind Tobacco (K) Ltd [2014] eKLR, the court held that: –

An employee cannot be kept on suspension indefinitely and I agree with the Claimant that his continued suspension amounts to constructive dismissal amounting to unfair termination of employment.

In Benuel Mariera v Awanad Enterprises Ltd [2014] eKLR, the court held that: –

Consequently the court finds on balance of probability that the claimant’s employment was constructively terminated by the respondent.  The foregoing finding is founded on the fact that although the claimant’s suspension was with full pay, the respondent never paid him any salary during the suspension.  Secondly, the suspension was indefinite and the claimant was supposed to handover all the company property.  Lastly the claimant was never called back to work even after the alleged investigations with respect to the lost cargo failed to implicate him.

See also: –

  • Francis Mangera Kionga v Kenya Revenue Authority [2013] eKLR;
  • Esther Wambui Ndua v National Bank of Kenya [2015] eKLR;
  • Rashid Jeneby v Prime Bank Limited [2015] eKLR;
  • Lilian Maina v Llyod Masika Limited [2016] eKLR;
  • Cecilia Muthoni Njoroge v Nairobi Stock Exchange [2014] eKLR; and
  • Charles Muturi Mwangi v Invesco Assurance Company Limited [2016] eKLR

The suspension period provided in the organization’s policies must be adhered to otherwise the suspension will be found to be unlawful. See: Gregory Otieno Owouth v Mumias Sugar Co. Limited [2016] eKLR. 

All cases can be accessed at http://kenyalaw.org/caselaw/

***THE END***

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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Comments

  1. Susan says:

    Very insightful read

  2. https://ke.linkedin.com/in/susan-mwangi-ab84049 says:

    Very informative. Many practitioners use suspension as a penalty rather than a preventive/admin process. I find 6 months a bit too long to carry out investigations, at most 3 months would do.

  3. Alina says:

    Dear lawyer, Im interested moment about dismissal because of suspension – what allowances should we pay – for ex. allowance for not used annual leave days?
    And what practice about suspension payment? Our company pays half daily rate – How denying payment during suspension is legal?

    Thanks for your answers

  4. Mike says:

    Dear Lawyer.

    Very resourceful information and I hope that whatever issues that are not provided for in the Act will be addressed/incorporate so that all the parties (employee and employer) will have clear cut guidelines.

    I would also like to know what rights does an employee have in case of suspension and where suspension is ill-motivated what steps can an employee take?
    Thank you

    1. Anne Babu says:

      An employee who is aggrieved with a suspension should raise the grievance in the manner provided in the company’s appeals or grievance handling processes. If there is no redress then consideration can be made to seeking redress in court in order to stop an unlawful or uncontractual suspension.

      1. Grace says:

        What is the difference between an appointment letter and a contract letter of employment. do they both carry the same weight in the law courts?

        1. Anne Babu says:

          It is for the employer to decide what contractual documents to give. Normally an appointment letter advises the candidate of their success in the interviews. The contract contains the detailed terms and conditions of service.

  5. Peter Otieno says:

    Very wonderful article

  6. Benard says:

    What happens when employee resign during suspension period can he or she be deducted notice in lieu?

    1. Anne Babu says:

      If the employee does not pay for the notice period, it may be deducted from their dues, subject to the two thirds rule.

  7. ANGELINE says:

    Good morning Ann. Kindly advise on the non teaching staff in secondary school and primary schools. Are their relationships guided by the employment act or do they have other laws under the ministry of education.

    1. Anne Babu says:

      Yes, they are governed by the Employment Act.

  8. charles says:

    Dear lawyer, I was accused of being involved in a theft I was arrested and judged in court in the year 2013 and subsequently suspended from work without pay until the case is finalized. Now its over and I was found not guilty what am I supposed to do? Demand my salary for all this time I was on suspension or should I demand for damages?

    1. Anne Babu says:

      You should demand for your pay and for an indication of the status of your employment. The response will determine your legal options.

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