Is It Fair to Suspend an Employee Without Pay for Minor Misconduct? Let's Discuss the Process

Suspension Process for Employee Misconduct

Would it be the correct process to suspend an employee for 2-3 days without salary for a small misconduct? Even if we don't ask for their written statements or explanation? Could you all also please elaborate on the whole process of what needs to be followed before a suspension?

Regards,
Ranjeet

Suspension Pending Disciplinary Action

Suspension pending disciplinary action should be considered either to prevent an employee from tampering with evidence or influencing witnesses if there is such a threat, or to ensure the safety or security of employees if the employee's presence poses a threat. It is also applicable where the misconduct committed involves moral turpitude, and the employee's continuance in service hampers the organization's public image.

If suspension as a penalty is to be imposed for misconduct, a proper domestic inquiry must be conducted, and the employee must be proven guilty based on evidence. Furthermore, there should be enabling provisions in the employee's service conditions to empower the employer to suspend an employee. Otherwise, suspension should not be used routinely or mechanically to satisfy personal whims.

Once suspended for valid reasons, the employee is entitled to a subsistence allowance. Suspension without a subsistence allowance is untenable.

Regards,
Saikumar
HR & IR Advisor

That is why I am wondering to see that suspension without salary is not justifiable. What should be done if employees are suspended without a proper inquiry? What could be the legal implications in such cases?

Regards,
Ranjeet

Dear Saikumar ji, Happy to see you once again. A regular contributor like you with more than 1700 posts, averaging two or more per day, taking a break for a couple of days makes a member like me feel that something is missing from this forum. All your posts are very accurate and specific in answers, which help enhance community knowledge.

Your answer in the current thread is also perfect. However, with your permission and due respect, I would like to add that the subsistence allowance is payable only in suspension pending an inquiry.

Thank you.

Thank you for evincing interest in my posts, and feedback from members like you is always reassuring. Yes, you are right that a subsistence allowance is not payable in case of suspension imposed as a penalty. It missed my attention. Thanks for making the post complete.

Regards,
B. Saikumar
HR & IR Advisor

If an employee is suspended by way of penalty without an inquiry or without a proper inquiry, if one is conducted, such suspension is untenable in law, and the employee will become entitled to full wages for the period of suspension that would have been payable had they not been suspended.

Regards,
B. Saikumar
HR & IR Advisor

As you already stated, it was a small misconduct committed by an employee. I feel it is not necessary to keep the employee under suspension pending an inquiry. You may please consider asking him to submit his explanation. If he admits guilt of the misconduct and pleads for an apology, you may immediately issue an order suspending him for 2 or 3 days without pay. However, awarding a punishment of suspension without pay without giving him an opportunity to explain his side may be seen as a violation of the principles of natural justice.

Thanks & regards,
V. Sridharan

The first thing you need to consider in supervising HR is sequencing the correct process for providing decisions and evaluations to your people, particularly for those employees involved in committing any violations. Suspending employees without following due process goes against labor laws.

Steps to Handle Employee Violations

The initial step is to send a notice of violation to the employee, providing them with the opportunity to explain their side in writing. In our company, we allow a 3-day period for their response. Failure to reply indicates that the employee has waived their right to challenge the decision or sanctions imposed by the labor relations department.

Next, after acknowledging the employee's response, it is best to conduct a personal interview (inquiry) where a representative from the labor union should be present.

Finally, the management makes a decision based on the inquiry and any collective bargaining agreements in place.

I hope this information is helpful.

Regards

An employee is put under suspension when it is apprehended that there are grave charges against him/her, or the misconduct may fall into the category of major misconduct and not as a matter of routine. Although suspension in itself is no punishment, it is a social stigma for the employee. The social image of the employee is badly hit. If in the inquiry nothing is proved against him, his social image cannot be immediately restored. Hence, while resorting to suspension, the decision should be taken after carefully considering all aspects of the case.

During suspension, the employee is entitled to one-third, one-half, or full wages as provided in the contract of employment or in service conditions/disciplinary rules.

Regards,
SP Singh
Retired Dy. General Manager,
Punjab National Bank

Thank you for your contribution. I wish to elaborate on your post to bring legal clarity to the matter, with due respect to you.

Subsistence Allowance During Suspension

Wages paid during suspension pending an inquiry are called subsistence allowance, which is payable according to the applicable SO(IE) Act or according to service conditions, subject to the same.

There is a controversy surrounding whether this subsistence allowance qualifies as wages or not. Different conflicting views exist among various High Courts under different enactments. The Supreme Court has made a decision stating that subsistence allowance is considered wages, but this ruling pertains to ESI. However, under the EPF & MP Act, subsistence allowance is not categorized as wages.

In most organizations, there is a Certified Standing Order (CSO) applicable to the working class in that organization. In the absence of CSO, Model Standing Order (MSO) is followed. These provisions spell out the misconducts of major and minor nature, penalty to be imposed, treatment of the period of suspension, subsistence allowance provision, etc.

Some misconducts, which are minor in nature, attract minor penalties like - show cause, warning, recordable warning, stoppage of increment without cumulative effect, etc. But some misconduct like - theft, damage to the company's property or image, riotous behavior, deeds involving moral turpitude, bribery, tampering with records, etc. (details given in CSO/MSO) attract major penalties. Before imposing a major penalty, the following steps may be taken.

a) First of all, a written complaint must be obtained regarding misconduct from a responsible official/supervisor or any other co-workman duly signed/forwarded by the section manager or any superior.

b) After the receipt of a written complaint, a preliminary inquiry may be conducted. If a prima facie case exists, approval should be obtained from the Disciplinary Authority (DA) to initiate disciplinary action against the accused workman, or the show cause/charge sheet should be signed by DA, giving at least 03 days' time for an explanation. The accused workman can be put under suspension pending a detailed departmental inquiry.

c) If the explanation is not found satisfactory, a departmental inquiry is to be constituted, consisting of IO, Mgt. reptv., and the accused workman is to be allowed assistance of a co-worker of his choice. The inquiry will proceed, and findings on the charges framed as to whether the charges proved or not proved or partially proved. Based on the findings, a penalty (minor/major) is to be imposed by passing a reasoned order by DA.

d) If the workman is placed under suspension, normally, subsistence allowance is paid after the expiry of the 3rd day/10th day as per the provisions of the Standing Order being followed. After this period, subsistence allowance is paid at 50% of wages/salary (Basic+DA). This rate is to 75% if the inquiry proceedings and suspension continue beyond 21/30 days due to reasons not attributed to the accused workman and it is reduced to 25% if the proceedings are delayed due to reasons attributable to the accused workman. During the suspension period, the employee has to put in/get his/her attendance marked in a separate register kept for the purpose. He has to give a certificate of non-employment at any other place at a certain duration to make him/her eligible for the payment of subsistence allowance. Double employment is not allowed. If the accused workman is found guilty of misconduct, he is not paid any wages for the period except the subsistence allowance already paid, but if he/she is exonerated, full wages for the entire suspension period after the deduction of subsistence allowance already paid is payable.

Hope this will give a better view of dealing with such cases.

A word of caution: Suspension should be the last resort, and the gravity of misconduct should be so warranting suspension. Otherwise, HR personnel are a soft target for both - higher management, the workers, and their representing unions.

Best wishes,

AK Jain