The Four Cardinal Principals for Evaluating a claim for Unfair Dismissal in the UK

In this post I will outline four principals that must be considered when as an employer you are faced with a claim for unfair dismissal in terms of the Employment Rights Act, 1996 or as an "employee", you are considering bringing a claim for dismissal. This post applies to the law of unfair dismissal in the United Kingdom. I will provide the skeleton in this post and in subsequent posts, we will consider the principals in greater detail. 

1.Does the person in question whose contract has been terminated have the right not to be unfairly dismissed? 

Not everyone who renders services to another has the right not to be unfairly dismissed. Only employees as defined by  the Employment Rights Act, 1996 (The ERA) have this right. Independent contractors and statutory "workers" do not  qualify to  have this right. There are further qualifications to this right. Only employees who have been  continuously  employed with the same employer for a year or longer acquire this right. As per my previous post, from the 6th April 2012 this is likely to change to two years. Look at S108 of the ERA to see how this period is calculated and what periods are included or excluded from this calculation . Certain categories of employee are also excluded such as  certain Crown employees etc.  In most cases, it should be easy to  determine if the person is an employee. However there are certain grey areas and complications when it comes to  certain independent contractors and atypical working patterns such as agency workers. If you have any uncertainty as  regards status, this is a highly complex and technical area and I would obtain legal advice. 

One exception to the general principle that a person has to have a specified length of employment in order to qualify, pertains to automatically unfair dismissals. A person obtains a right not to be dismissed for certain reasons from day one. The concept of an automatically unfair dismissal is explored in greater depth below. 

If the claimant does not qualify for the right not to be unfairly dismissed in terms ofS 94 of the ERA, the tribunal does not have the jurisdiction to hear a claim for unfair dismissal. 

2.If the person does qualify for this right, has there been a dismissal as defined by the ERA? 

Not all terminations of a contract of employment constitute a dismissal in terms of the ERA. S 95 of the ERA provides for the following types of dismissal. Firstly where the employer unilaterally terminates the contract of employment. This is the  most common type of dismissal. Secondly where the employee is on a fixed term or time contract and the contract expires by way of the event in question and is not renewed e.g a contract that runs from the 1st March 2012 until the 31st March 2012 terminates on the 31st March 2012 and if not renewed, this constitutes a dismissal. Lastly where the employee resigns in circumstances where they would be entitled to resign as a result of the employers conduct. This is the so called constructive dismissal. if the employer commits a serious breach or repudiates the contract, the employee can accept and resign and claim constructive dismissal. 

3.Is the reason for dismissal a "potentially fair reason" (PFR) or not?

Firstly you must determine whether the reason for the dismissal is automatically unfair? Certain reasons for dismissing an employee are automatically unfair and if the reason for dismissal falls into these category of reasons, the dismissal will be unfair irrespective of the merits of the matter. The range of these reasons is to wide to deal with in this post. The most common reasons are: 1. For carrying out health and safety functions or bringing potentially or actually harmful circumstances to his employers attention.2 For asserting various statutory rights such as instituting a claim for unlawful deductions. 3 When there is a transfer of an undertaking where the reason for the dismissal is solely or principally related to the transfer or where the reason was related to the transfer and was not an economic, technical or organisational reason. See S 98-104 of the ERA(ERA)

Secondly if the reason for the dismissal is not automatically unfair, is the reason a potentially fair reason for dismissal? S 98 (2) of the ERA provides that you may dismiss someone for a reason related to their ability to do the job (capacity  or qualifications), their conduct, failure to meet a statutory requirement,  redundancy and for "any other substantive reason". The onus is on the employer to prove the real reason for the dismissal and the determination is made at the time for the dismissal. The employer cannot rely on facts unknown to them at the time of making a decision to dismiss. 

4.Was the dismissal fair?

If the reason for the dismissal falls under S 98 (2) of the ERA, the employment tribunal must decide whether upon a consideration of all the relevant circumstances, the employer acted reasonably in dismissing the employee (see S 98(4) ).

This is a vast and complex area but essentially the tribunal must determine two questions:

Firstly whether a fair procedure was followed in taking the decision to dismiss? The general principle seems to be is that the principals of natural justice should be followed before taking a decision to dismiss. This is to say, the employee must be informed of the allegations against them and afforded an opportunity to respond to those allegations. The ACAS Code of Good Practise on Disciplinary and Grievance Procedures , is not binding on employers. However failure to follow the code may result in a 25% increase in compensation awarded if the dismissal is found to be unfair. In addition, the code distills the essential principals of natural justice and as a matter of good practise should be adopted by all employers. The code obviously does not apply in cases of redundancy. In cases of redundancy there must be a full and proper consultation process. The ACAS advisory pamphlet on redundancy  sets out the principals nicely. 

Secondly, whether the decision to dismiss is within the range of reasonable responses? The tribunal must decide whether the dismissal falls within the range of responses which a reasonable employer may have taken, taking into account all of the relevant circumstances. This element covers too much ground to discuss in this post and will be explored in greater depth in a subsequent posts.  However by way of an example, this evaluation normally involves, within the context of misconduct, whether or not the employee is guilty of the misconduct or whether the employer had a reasonable belief that he or she was guilty, the nature of the misconduct, the employees previous disciplinary record and length of service. 

I have tried to illustrate the evaluation process diagrammatically below. 

The extension of the qualifying period for protection against unfair dismissal

It has been announced by the chancellor of the United Kingdom that the government intends once again, to increase the qualifying period for rights not to be unfairly dismissed (in terms of the Employment Rights Act, 1996 ) from one to two years continuous employment. This will take effect as from the 6th April 2012 and it is rumored at this stage to only apply prospectively. That is to say it will not apply to those already employed as at the 6th April 2012. The stated reason for this change is that it is thought that this will increase small employers confidence to employ more people and therefore reduce unemployment and stimulate growth.

The question which I examine here is whether this extension to the qualifying period may be successfully challenged. This question comes to mind because this is not the first time that the qualifying period has been extended to two years. Prior to 1985, the qualifying period was one year. This was changed in 1985. This extension was challenged in the matter R v Secretary of State for Employment, ex p Seymour-Smith. The basis for the challenge was that because the two year qualifying period had a disproportionate effect on women as opposed to men, this constituted indirect discrimination on the basis of sex and as such violated the Equal Treatment Directive. The Court of Appeal agreed and quashed the extension. However on appeal the House of Lords, after seeking rulings from the ECJ, overturned the decision on appeal. However by this time, the government had reduced the qualifying period to one year and the matter was laid to rest. The impending changes thus once again raise the specter of a fresh challenge. The question is whether such a challenge would have a chance of succeeding in light if the decision by the House of Lords in the Seymor-Smith decision. percentage

The first point to note about the decision is that the House of Lords found that article 141 of the EC treaty was applicable and not the Equal Treatment Directive. The House of Lords, acting on the rulings by the ECJ, held that in order for such a claim to succeed, the claimants must be able to show that there was a considerable difference between the percentage of employed men who met the qualification and employed women who met qualification. Furthermore that such a difference was constant and persistent. This is in my view the ratio decidendi of the House of Lords ruling and the principle remains good law. The majority of the House of Lords found on the facts that while there was a constant and persistent difference, the difference was not large enough to be considered considerable. The court found that the statistics between the years 1985 - 1991 (between the time that the period was extend and the date when the claimants were dismissed) showed that for every ten men that qualified only nine women qualified. I have not researched the recent statistics but this figure is unlikely to have improved given the fact that due a variety of factors including family commitments, more women tend to be employed on short fixed term contracts than men. There is every likelihood that provided the statistics are supportive, this hurdle may be surmounted. It is also possible that the ECJ may come to a different conclusion on the same facts.

However, even if it can be shown that the order extending the qualifying period does have a disparate or disproportionate effect on women, this is not the end of the matter. As argued by Lord Nicholls in the Seymour-Smith decision, the state may still show that the disparate impact is objectively justified by the legitimate aim of the extension. The test is whether the order seeks to achieve a legitimate aim and (because we are dealing with state as opposed to private action )that the member state reasonably considered the means chosen to be suitable for achieving that aim. In a dissenting judgement in the Seymour-Smith decision, Lord Nicholls held that there was a disproportionate impact on women but that it was objectively justifiable because the extension sought to achieve the legitimate aim of encouraging employment and there was 'some' evidence supporting this contention. I believe that it is the justification defense that would provide the sticking point for a challenge to the extension of the qualifying period. What presents a particular difficulty for a claim that the order indirectly discriminates is that the state is given a wide discretion as to how they seek to achieve a legitimate end. The state may have little evidence that the extension of the qualifying period would increase employment but because of the degree of deference applied by the judiciary, this may be sufficient. It seems to me that it may be better to try find some sort of other incompatibility between the order for extension and some other EC instrument. In the end, the success or otherwise of a claim that a order extending the period from one to two years will primarily depend on the empirical evidence supporting the claim that the extension will increase employment. If the is no such evidence, then there is a significant chance that such a claim may succeed. If there is some evidence, although this may not be definitive or convincing, such a claim is unfortunately likely to fail. It would certainly be interesting for someone to analyze the impact that the last extension to two years had on the employment rate all other things being equal. The current governments claims in this regard may like many other claims it has made, may just be found wanting.

An objective approach to determining the fairness of a disciplinary sanction

It seems clear to me that an arbitrator or judge in determining if a disciplinary sanction if fair is making a value or normative judgment. I believe that this is what is meant when the constitutional court in Sidumo said a commissioner in undertaking this function must exercise his or her own sense of fairness.  However these words, ‘ his own sense of fairness’ have been fundamentally misunderstood by judges and arbitrators alike.  The prevalent interpretation of how a decision maker should go about making this value judgment endorses a subjectivist or parochial approach to the exercise of value judgments.  I submit that this is an incorrect interpretation of how this value judgment should be exercised

Firstly let me explain what I mean by the parochial approach. The statement “in deciding the fairness of a disciplinary sanction, the employer must exercise his own sense of fairness’ can be interpreted in at least two ways. Firstly it could mean that the evaluation of the fairness of the sanction must take place relative to that particular decision maker’s personal values. For example, on this approach a commissioner  evaluating a employer’s decision to dismiss for stealing a pie would look for a fit with his or her personal values. If the commissioner believes that dismissal for petty theft is unfair, on this view, the commissioner must find that the employer’s sanction is unfair.  Secondly, exercising one’s own sense of fairness could mean that it is the commissioner that must exercise this value judgment but that it must be objectively exercised in that a sanction must be evaluated in relation to values which are generally accepted by our society as a whole whether or not the individual commissioner subscribes to those values or not. Using the above example, an employer’s decision to dismiss for theft could only be judged to be unfair if such an action would be inconsistent with the public values of the society on whose behalf he exercises his judgment .  On the parochial approach, the yardstick is personal mores whereas on an objective approach the yardstick is bona mores or pubic values.

I believe that there are strong arguments against the parochial approach.

Firstly the nature of the office of an arbitrator or commissioner. The commissioner or arbitrator is a public function. The South African public has through the Nedlac process which resulted in the Labour Relations Act, given CCMA arbitrators the power to resolve disputes on their behalf.  It cannot be the case that “we” have asked these arbitrators to impose their own personal values on “us”.

Secondly, one of the functions of the law is to give guidance to the public in general as to what is permissible or what is not. The law can only serve this function if the outcome of any particular dispute is predictable. That is to say the law can only serve this purpose if we can predict with reasonable certainty what legal consequences attach to a certain action. If it is permissible for arbitrators to impose their own values in determining the fairness of a disciplinary sanction, the outcome becomes largely unpredictable and the law ceases to be able to achieve one of its chief functions.  Lastly, moral theorists often associate correct moral decision making with objectivity. It is true that unlike making a factual or empirical judgment such as “the employee arrived late for work”, a value judgment like “it is fair to give the employee who arrived late to work a written warning”, cannot said to be true or false.  However many philosophers (such as John Rawls and Ronald Dworkin) argue that value judgments are objectively justifiable and some judgments can be accepted or rejected on an objective basis. For example Rawls this objective justification consists in its “reflective equilibrium” or lack thereof with our fundamental moral convictions. For Dworkin, justification consists in an integration with the principals of dignity.  On objective approach to evaluating the fairness of a disciplinary sanction encourages moral justification and leads to greater scrutiny and better decision making.

When the Constitutional Court says a commissioner must exercise his or her own sense of fairness, it does not mean that the commissioner must impose his or her own values but rather that it is the commissioners function to make this judgment, as opposed to any of the parties to the dispute but must do so in accordance with publicly acceptable values.  We have these values. They are contained in the constitution.  The arbitrator in evaluating the fairness of an employer’s decision to dismiss or sanction an employee, the arbitrator must look for a fit with values generally accepted by the South African public. One way to achieve this would be to ask, would a reasonable member of the South African public, imbued with these public values, upon a consideration of all of the relevant circumstances consider this sanction to be fair?  If yes, then the sanction should adjudged to be fair irrespective of whether the arbitrator in his personal capacity would not have decided likewise.  This would result in more consistent and better decision making. 

Amendments to Labour Legislation - an update

The latest  news regarding the proposed amendments to existing labour legislation which has stirred up so much controversy is that the draft bills have been rejected by Nedlac as being badly drafted and have been sent back to be re-drafted. This is what was reported at the beginning of this monthSee News24. I have done some research and cannot find any further news on this issue. There is no clarity as to the details of the complaints regarding the bills as they were. However the Financial Mail said that the fact that COSATU supported the position that the bills were untenable in their current form was a positive signFinancial Mail. When and if the new drafts become available, I will provide you with a summary and analysis of them. 

A bit of a rant

Dear Reader.

I apologise for being absent for some time. You can thank our dear department of labour for that. I have been embroiled in a dispute regarding the de-registration of an employers organisation. It seems that the Registrar of Trade Unions is hell bent on deregistering as many Trade Unions or Employers Organisations as possible. At this stage the motive is unclear but in my opinion, it is not motivated by altruistic concern. A number of organisations have been de-registered for financial irregularities. I do not have any issue with this because I believe that the only justification that limitations or the impositions regarding the registration of trade unions and employers organisations can have is to protect their members ( and by extension members of the public) from being fleeced or having their money used for unauthorised or otherwise illegitimate purposes. However the department has de-registered a number of Trade Unions and Employer Organisations that in the registrars infinite wisdom do not constitute "genuine " employers organisations. This clearly smacks of the imposition of value judgements by a person not even democratically elected. I know that this practice is being constitutionally challanged in matters that are pending before the Labour Court. I hope that sanity prevails but I am certainly not holding my breath. The Labour Court it seems is more than willing to protect the registrar. On balance, the net effect of this strategy will be to undermine the stability of Labour Relations. I say this because a number of what are in my view responsible employer organisations are being or have been de-registered. When I say responsible organisations, I mean organisations that are professionally run, who conduct themselves in an ethical manner and who have over a period of time created close relationships between the employers they represent and the labour they employ. The registrar has often cast the reasons for the de-registration in the widest possible terms so as constitute no reasons at all and have de-registered these associations without first engaging them in a meaningful way with the purpose of remedying practices which the department finds offensive. 

One of the registrar's "beefs" is that the Trade Union and Employer Organisation is being used as fronts by attorneys and dare I say it "Labour Consultants" to represent their clients in the CCMA and Labour Court. One obvious way to remove this problem is to open up the right to represent in these fora. In the United Kingdom and in Botswana, anybody can represent anyone else in the employment tribunals and in the Industrial Court respectively. Why not do the same thing here? Those jurisdictions did not descend into chaos.   The argument is that firstly the limitation on representation was and is a negotiated settlement between Business, Labour and the State. In other words it was negotiated between anybody but the ordinary South African citizen. Big business, organised labour and the state do not speak for the average person who has the misfortune of finding themselves at the CCMA for whatever reason. I suspect that if you had to conduct a survey amongst South African citizens that the current limitation on representation at the CCMA and Labour Court would not be supported by the majority. The other argument against this is that it would allow unscrupulous "fly by night" consultants with little or no knowledge, skills or experience in labour litigation to operate in the various dispute resolution fora. I do not believe that the current restrictions on representation are a panacea to this evil. In my experience (and I appear on average in the CCMA and Labour Court three times a week) officials from so called "genuine " and well established trade unions such as NUMSA and SACCAWU have minimal litigation skills and often lose cases because of a lack of skill. The most highly regulated group i.e legal practitioners are expressly excluded from representing litigants in the most common type of disputes before the CCMA i.e dismissal disputes for misconduct and incapacity. It is also argued that lawyers complicate and extend the life of disputes. I believe this to be a myth. In my experience when a litigant is unrepresented, it is likely to take longer to resolve that dispute. I suspect that the restrictions on representation further vested interests of the established trade unions. It is high time that this monopoly is broken and we adopt a more mature, practical and principaled approach to this issue. 

Let me know your views.

Enjoy your weekend, over and out.

Suspending an employee, part II

In my previous post, I argued that an employee should be given an opportunity to be heard on why he should be suspended before he is suspended. However there are situations where an opportunity to be heard after an employee is suspended may be fair. 

As set out in my previous post, the right to be heard before being suspended arises from the rules of natural justice. Our courts have recognized that a hearing or opportunity to be heard after the decision has been made fulfills the requirements of natural justice. In Mamabolo v Rustenberg Town Council click here , the Supreme Court of Appeal said that:

'In certain instances a court may accept as sufficient compliance with the rules of natural justice a hearing held after the decision has been taken, where:

There is a sufficient interval between the taking of the decision    and its implementation to allow for a fair hearing; The decision-maker retains a sufficiently open mind to allow himself to be persuaded that he should change his decision andThe affected individual has not thereby suffered prejudice.' 

This principle was also endorsed by the Labour Appeal Court in Semenya & Others v CCMA & Othersclick here, where the court had this to say: 

The third respondent’s contention that the opportunity to be heard was not good enough because it was offered after the decision to dismiss her had been taken requires close examination. It is not our law that an opportunity to be heard that is given after the relevant decision has been taken is never good enough. Although generally speaking such an opportunity should be given before the decision can be taken, there are circumstances where an opportunity to be heard that is given after the decision has been taken is acceptable...I do not propose to set out a list of situations where an opportunity to be heard that is given or offered after the decision has been taken is acceptable. Probably it is not advisable to attempt to give an exhaustive list of such situations. However, it seems to me that, where it can be said that the opportunity to be heard that is given after the decision has been taken is no less fair than the opportunity that should have been given before the decision could be taken, it ought not to make a difference that it was offered after the event'

It seems to me that the general rule is that an opportunity to be heard should a general rule be given before the decision is made to suspend. However there are certain situations where an opportunity to be heard after the decision is made is acceptable. The guiding principle is whether it would be fair to do so. Fairness here is a function of two considerations. Firstly, whether the decision makers mind remains open and the opportunity to make representations is real and not merely "lip service.” Secondly, where there has been no prejudice to the employee or where the hearing after the fact cures the prejudice. 

In light of the above, I would like to amend my original advice on the steps to take when suspending an employee and add the following addition, amendment, or proviso. If giving the employee an opportunity to be heard before he or she is suspended is impractical or where it would be counter productive, I would adopt the following procedure. I would, as suggested before with as little fanfare as possible give the employee a notice of provisional suspension, stating the reasons of the suspension and give him or her an opportunity to make representations as to why the provisional suspension should not be made permanent. In addition, if possible I would have my HR manager conduct this process and then direct the employee to make representations to another higher-level manager. In other words the decision to suspend the employee provisionally should not be made by the same person who is to make the decision as to why the suspension should not be confirmed. 

An example of the relevant notice could be as follows:

' Dear Mr. X

 We have made a provisional decision to suspend you. The reasons for this provisional decision are as follows:

1. 

2. 

etc 

You have until the______________ to make written representations to Mr. Y , the M.D as to why the provisional suspension be confirmed. If the decision is confirmed you will be suspended on full pay pending the outcome of a disciplinary hearing’

Suspending an employee pending disciplinary action

Suspension as a holding operation

There are two categories of suspension. There is what has been called suspension as a 'holding operation'. This refers to a situation where an employee is suspended pending the outcome of disciplinary proceedings. There is also suspension as a form of disciplinary action. This post will focus on the former. I will look at the procedures that need to be followed in suspending an employee and when or for what reasons you can suspend an employee pending the outcome of disciplinary proceedings. 

The applicable legal principles

Prior to the decision of the Labour Court in Koka v Director-General Provincial Administration North   West Government [1997] 7 BLLR 874 (LC), there were conflicting views as to whether suspension as a holding operation fell within the ambit of the unfair labour practice definitions of the Labour Relations Act. The significance of this issue was that if it did, employees could refer a dispute to the CCMA if they were suspended pending the outcome of disciplinary proceedings and could be awarded, amongst other forms of relief, compensation, if it was held that the suspension was unfair. In Koka, the Labour Court held that suspending employees as a holding operation did fall within the ambit of a "labour practice" as contemplated by the unfair labour practice provisions of the act. The Koka decision was also significant in that it now followed that an employer had to have a fair reason for suspending and employee and had to follow a fair procedure in suspending an employee.

However, it seems that an employee may have other causes of action if they are suspended in this manner. Firstly, there may be other statutory provisions, which regulate the issue such as in the case of public service employees. Secondly, there may be a collective agreement dealing with the issue. Thirdly, there may be contractual provisions, which regulate the issue of suspension. In a number of cases it was held that there was an implied term in any contract of employment that employer had to deal with the employee in a fair manner. However, it seems that this contention has been rejected by the Supreme Court of Appeal in SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA). A person seeking to rely on a contractual cause of action in respect of a suspension cannot rely on some general implied term of fairness. They could only rely on express or tacit terms of the contract dealing with the issue of suspension or fairness. 

A right to be heard before being suspended

In Koka (supra), the court per Landman J as he then was held that there was no right to be heard or to make representations before a decision is made to suspend. A number of decisions by the Labour Court, as well as arbitrators of the CCMA or other bodies held the view that there was no right to be heard before being suspended. However, a number of recent decisions have held that that a person has a right to be heard as to why they shouldn’t be suspended before they are suspended. The reason for this is most recently expressed in Dince & Others v Department of Education Northwest Province, where the court stated that because a suspension affects one's right to dignity and to work, an employee must be given an opportunity to be heard before a decision is taken to suspend him or her. The court based the right to be heard in the concept of fairness, citing case authority for the fact that the audi alter pater principle is merely an expression of the requirement of fairness. In light of the Mckenzie (supra) decision, the right to be heard cannot be located in some general implied contractual term to deal fairly, but these decisions still support the contention that the principle of fairness, as contained in the LRA, would require that a person be given an opportunity to be heard before a decision is made to suspend them. 

Of course there are always exeptions to the rule and there may be certian situations where a failure to give expression to the right to be heard would not be unfair. These are the so called ‘emergency’ situations and are seen in the context of a suspension where giving a person a right to be heard would be impossible or would result in damage to persons or property. 

Do you have to have a reason to suspend? 

Typically, employers suspend employees where the charges against them are serious, such as theft, fraud or assault. However, in a number of recent decisions by the Labour Court (for example, see Mogothle v Premier of the North West Province & anotherCity of Johannesburg Metropolitan Municipality v SAMWU & others and Dince (supra) ), the courts affirmed that three requirements must be met before an employee may be suspended. The first has been already dealt with, namely an employee must be afforded a right to be heard before he or she is suspended. The other two requirements are that the employer must be satisfied that the allegations against the employee are serious and that the employer must establish that the continued presence of the employee at the workplace might jeopardize any investigation into the alleged misconduct, or endanger the well-being or safety of any person or property. It is not enough that the allegations are serious. The second part of the reasoning process must be satisfied. 

Must an employee be paid whilst on suspension?

Unless a contractual or collective agreement allows you not to pay employees during a suspension or unless the employee consents to this, the failure to pay a person during a suspension would constitute a breach of the contract and or of the Basic Conditions of Employment Act. I am aware of one arbitrators decision which held that if the period of the suspension is extended as a result of a request of a postponement of the disciplinary proceedings by the employee, it is not unfair not to pay for that extended period. However, the reasoning in this decision is dubious and even if it was not unfair, it would be unlawful and the employee would be able to claim under the BCEA or contract for payment of those monies. So as a general rule, the employee must be paid during the period of suspension. 

Conclusion(s)

In light of the aforementioned legal principles, before suspending an employee, I would apply the following principles:

1. Conduct a proper investigation. Ensure that the allegations are serious. Serious allegations would include dishonesty, especially theft or fraud, assault threatening or intimidating behavior or harassment or competing with the business. Look for evidence that would support the contention that if the person is not suspended they are likely to interfere with the investigation, such as destroy evidence and or threaten or intimidate witnesses etc, or to support the contention that there is a reasonable risk that they may destroy company property or hurt persons. A reasonable apprehension of this may arise as a result of the nature of the alleged misconduct and or out of the circumstances under which the misconduct is alleged to have taken place. For example, it may be argued that in the event that the circumstances are that an employee is suspected of threatening or assaulting an employee, a reasonable suspicion that the employee may harm that employee once he has learnt of the charges against him may be sustainable. However, there must be substance to the allegations in the first place. 

2. Inform the employee that you intend to suspend him or her, give the reasons and invite the employee to make representations as to why they should not be suspended. This need not be a formal hearing but an informal discussion. The dilemma employers face is that they think that if employees are given time to make such representations, they may cause damage. However, there are ways in which the risk of this may be mitigated. Firstly, you could do it at the end of the working day and give the employee a chance to make representations by the start of the next working day or in certain situations, where you feel that the employee may damage property or contact fellow employees even if given a short time to make representations, you could ask them to make representations to you immediately after you have informed them of your intention to suspend and the reasons therefore. 

3. Don't make a spectacle of it. The less other employees know about and the more privately it is done, the better. This is so because the impact on the employee’s dignity in such circumstances is diminished and this may have an impact on the fairness of the suspension or the compensation awarded in the event it is found to be unfair.

4. Ensure that the period of suspension is for a short as period as possible.