Taking counsel: Employee Suspension: Proceed with Caution

  • 2008-10-29
  • By Annija Melko [Kronbergs & Cukste]
Employment relations in Latvia are governed by the written employment agreement, and Latvian law, primarily the Latvian Labor Law. Most employers are to a greater or lesser extent familiar with the fact that the Labor Law sets out specific mandatory conditions under which the employment relationship may be terminated. Many employers have learned that although the law sets out several permissible grounds for termination, in practice very few are easy to substantiate in a Latvian court, if challenged. Fewer employers seem aware of the rights they have to suspend employees under certain circumstances.

Section 58 of the law defines suspension as a written order by the employer temporarily barring the employee from being present at work or performing his work, without pay. Suspension is not termination, and an employer in suspending the employee is obligated to keep the employee's position open.
What are the conditions under which suspension is permitted? An employer may suspend an employee if the employee, in the course of performing his work or while on company premises, is in a state of alcoholic or narcotic or other intoxication, or where failure to suspend the employee may harm his or that of a third party's safety or health. The employer may also suspend an employee if the employer has good grounds to believe that the employee's remaining on the premises or continuing to perform work duties may harm the legitimate interests of the employer or a third party.

If the reason for suspension is 'perceived likely to harm the legitimate interests of the employer,' then there must be a close nexus between the likelihood of such harm and the employee's being on the workplace premises or continuing to perform the work. The burden of proof lies with the employer and the standard is that of a reasonable member of society in addition to the employer's reasonable subjective determination. In practice the grounds for suspension must be realistic with specific employer interests at peril if the employee remains on the job.

Suspension is in itself not just cause for termination. If the employer wishes to terminate the employee, the employer can do so only following the lapse of the suspension period. Suspension is legally considered justification for non-performance of work.

Under the Labor Law, if suspension is found to have been unjust, then the employer is required to compensate the employee is the amount equivalent to his average wage, for the duration of the suspension. If the employee becomes sick during the period of suspension, then the employer must, in the event that the suspension is found to have been unjust, compensate sick pay for the employee. If the suspension is found to have been just, then sick pay for sick time during the suspension is not payable by the employer.  Only a court can rule on the question of whether or not there has been a just cause for suspension.

The Labor Law does not permit suspension for longer than three months, unless it is imposed by a duly authorized state official. The bar is not applicable where an employer makes a claim in court for approval of a dismissal (such as may be required in the case of dealing with a unionized employee) where the employer reasonably believes that the employee's continued performance of his duties, or remainder at the work site, will cause harm to the employer's legitimate interests. There is no ban against making successive suspensions of the same employee, yet for the employer to do so may add to the risk of being found to have acted unjustly towards the employee, triggering compensation requirements.

In conclusion, while suspension may be a useful tool in the employer's toolbox, its use must be handled with caution, and is best dealt with in consultation with a legal professional.

This article was written by Annija Melko, an associate of Kronbergs & Cukste. Kronbergs & Cukste is a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms dedicated to providing a quality 'one-stop shop' approach to clients' needs in the Baltics.