During the parliamentary treatment of the Work and Security Act, the government took the position that, in the event of suspension of the employee as a disciplinary measure, the salary could be withheld. This gave rise to the suggestion that you, as an employer, actually have the authority to suspend the employee without continued payment of salary. However, this turns out not to be the case, as case law now shows. Take, for example, the ruling of the Amsterdam subdistrict court of 23 November 2016.

Case
An employee of an antiques shop worked in the position of shop manager. He was suspected by his employer of selling goods off the books and withholding the proceeds from this. His employer placed him on non-active status without continued payment of salary and ultimately asked the subdistrict court to dissolve the employment contract. The court agreed with this latter request and dissolved the employment contract without awarding a transition payment to the employee.

However, the court did not agree with the suspension without continued payment of salary and granted the employee’s wage claim. In support of this, the subdistrict court relied on settled case law of the Supreme Court (Van der Gulik/Vissers & Partners). This holds that, if an employer chooses to place an employee on non-active status or suspend them, the employer is nevertheless obliged to pay the employees’ salary. This obligation also applies if the non-active status or suspension is attributable to the employee.

In its ruling, the subdistrict court did not attach much weight to the government’s remark that, in the event of suspension by the employer, the salary could be withheld. This is because the law and the line of case law mentioned above have not been amended since the government’s remark.

Advice

1. Keep paying the salary during the period in which you suspend an employee or place them on non-active status. 
2. Only use the disciplinary measure of non-active status or suspension when the situation requires it. Suspension can be used pending the termination of the employment, for example if the relationship of trust has been damaged to such an extent that you do not want the employee to work during the intervening period. In that case, suspension with continued payment of salary is also referred to as release from work duties. Suspension can also come in handy if you need some time to complete an investigation into the cause of a problem or suspicion, with the aim of then taking further measures. Think of summary dismissal if a suspicion of theft has been confirmed through the investigation and this can be proven. 
3. Make good written agreements about the consequences of non-active status or suspension.

• It is wise to agree with your employees that a suspension or non-active status has consequences for the right to use company property. Think of the right to use a laptop, mobile phone or company car, which ends due to the suspension or non-active status.
• It is also advisable to agree that a thirteenth month or a profit-sharing scheme lapses due to suspension or non-active status.
• Finally, as an employer, you are free to exclude, in writing in the employment contract, the right to salary during periods in which the employee does not work (e.g. due to suspension). This is only possible during the first 6 months of the employment contract. Do note whether different agreements have been made in a CLA.

NB. Deploying disciplinary measures such as suspension/non-active status or summary dismissal cannot simply be done at will. Especially with summary dismissal you must be careful, since it is subject to many legal requirements. Always consult with a lawyer beforehand about deploying these disciplinary measures. This way you prevent unnecessary mistakes and the associated financial damage!

For more information about this article or topic, please contact Wesley Sallé via 020-3450152 or wsalle@thelegalcompany.nl