Introduction:

The suspension of an employee, whether with or without pay, is a disciplinary tool frequently used by employers pending an investigation into misconduct or allegations of wrongdoing. In Nigeria, the rights of an employee under suspension are not absolute, but they are subject to certain statutory, contractual, and common law provisions. Like in some other jurisdictions, Nigerian employees enjoy certain rights and protections even when under suspension or investigation for misconduct. These rights are crucial in ensuring that the principles of fairness, equity, and justice are maintained in the workplace. This article x-rays some of the rights of an employee under suspension, with a focus on Nigerian law, while drawing parallels with international labour standards, and decisions from the International Labour Organization (ILO) and the African Development Bank (AfDB) Administrative Tribunals.

Definition of Suspension

Suspension is generally defined as the temporary removal of an employee from active service by the employer, pending the outcome of an investigation or disciplinary hearing. It means to defer, lay aside, or hold in abeyance, it also means to halt halfway but not to bring to an end or, terminate.1 Suspension merely operates to suspend the contract rather than terminate the contractual obligation of the parties to each other.2

Types of Suspension:

In Nigerian employment law, there are two main types of suspension:

Suspension with Pay: The employee continues to receive salary and benefits during the period of suspension. This is the default position unless otherwise stated in the employment contract or collective agreement.

Suspension without Pay: The employee is not entitled to receive salary during the period of suspension.

Rights of an employee under suspension

Some of the rights of an employee under suspension are as follows:

1. Right to fair hearing

The right to a fair hearing is a corollary to the presumption of innocence. It is one of the twin pillars of natural justice which every judicial or quasi-judicial body is expected to observe. Section 36(1) of the Constitution3 guarantees the right to a fair hearing in the determination of an individual’s civil rights and obligations. In the context of employment, this means that an employee under suspension must be given an opportunity to respond to any allegations made against them. The employer is obligated to conduct a fair and impartial investigation, allowing the employee to present their side of the story. In Olatunbosun v. NISER Council,4 the Apex Court emphasized the importance of fair hearing in employment disputes. The Supreme Court held that an employee must be given adequate notice of the allegations and an opportunity to defend themselves before any disciplinary action is taken.

It is important to emphasize that there is no blanket approach to fulfilling the requirement of fair hearing. What is essential is that the employer provides the employee with an opportunity to present their side of the story. In Imonikhe v. Unity Bank Plc5 the Supreme Court held that the issuance of a query by an employer, coupled with affording the employee an opportunity to respond to the query before any decision is made, constitutes sufficient compliance with the principles of fair hearing. It is my opinion that where an established procedure or process exists to be followed by the employer either before or after suspending the employee, it is imperative that the employer adheres strictly to such procedures.

The International Labour Organization (ILO) Convention6 on termination of employment, to which Nigeria is a signatory, reinforces the principle that employees must have the opportunity to defend themselves against allegations before termination. Article 7 of the Convention states that a worker should not be dismissed before being provided an opportunity to be heard. In ILOAT Judgment No. 3576 (2016), the ILO Administrative Tribunal held that the right to a fair hearing is fundamental in any disciplinary procedure. The Tribunal annulled the dismissal of an employee who was not given an opportunity to defend himself, underscoring the necessity of adhering to procedural fairness.

2. Right to be informed of the offence

An employee under suspension has the right to be informed of the nature of the allegations against them. This is rooted in the principles of transparency and accountability in the workplace. The employee must be provided with sufficient details of the allegations to enable him/her to prepare an adequate defence. In Shell Petroleum Dev. Co. Ltd v. Victor Sunday Olarewaju7 the Supreme Court buttressed the importance of availing an employee of the allegation against him to enable the employee to adequately prepare for his defence.

Similarly, in AfDBAT Judgment No. 67 (2001), the African Development Bank Administrative Tribunal ruled that an employee must be clearly informed of the charges against them and the basis for any disciplinary action. The Tribunal further ruled that the failure to provide such information constitutes a breach of the employee’s right to due process.

3. Right of representation

The right of representation is not applicable in all cases of disciplinary proceedings. However, employees under suspension also have the right to be represented during disciplinary proceedings especially where the allegations are so weighty and the employee does not have the expertise to adequately defend himself. Representation can be by a legal practitioner, a union representative, or any other person of the employee’s choice. In Shell Petroleum Development Company v. Lawson-Jack,8 the Court of Appeal emphasised the importance of allowing employees the opportunity to be represented during disciplinary proceedings, especially when the outcome could significantly impact their employment status. The ILO Administrative Tribunal in ILOAT Judgment No. 3074 (2011), also held that the absence of representation in serious cases undermines the fairness of disciplinary processes.

4. Right to be paid during suspension

The right to be paid during the period of suspension is another critical protection for employees under suspension. In Nigeria, an employee generally retains the right to be paid during suspension unless the employment contract or specific statutory provisions state otherwise. This principle is rooted in the reality that a suspended employee is effectively placed in a state of uncertainty, living each day in anticipation of either being reinstated or dismissed. During this period, the employee is not at liberty to utilise their time elsewhere or as they see fit, except after the official close of business hours.9

Suspension is often categorized as either “suspension with pay” or “suspension without pay,” with the former being the default position unless explicitly stated. The ILO Convention10 on the Protection of Wages, supports the principle that wages shall be paid regularly and directly to the worker, and that deductions from wages may only be made under conditions and to the extent prescribed by national laws or collective agreements. In Longe v. First Bank of Nigeria Plc,11 the Supreme Court held that unless there is a clear provision in the contract of employment that authorizes an employer to suspend an employee without pay, where an employer suspends an employee without pay, such a suspension would be unlawful. The Court further stated that an employer cannot deprive an employee of their salary during suspension unless it is expressly provided for in the contract of employment. This position was re-echoed in Nweke v. Unizik Awka12 wherein the Apex Court held thus:

“Suspension means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. It carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or the person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. In other words, suspension is usually a prelude to dismissal from an employment. It is neither a termination of the contract of an employee nor a dismissal of the employee. It merely operates to suspend the contract rather than terminate the contractual obligation of the parties to each other.”

In AfDBAT Judgment No. 72 (2004), the AfDB Administrative Tribunal ruled that the suspension of an employee without pay was unlawful where the employment contract did not expressly allow for such a measure. The Tribunal further held that unless there is clear evidence of gross misconduct justifying suspension without pay, the employee must continue to receive his salary.

Furthermore, indefinite suspension without pay has been frowned upon by our courts as it is against international best practices in labour practice. In Mr. Emeka Onyema v. Diamond Bank,13 the National Industrial Court (NICN) set aside the indefinite suspension of the Claimant without pay on the ground that it is against the international best practice in labour practice and same cannot be legitimized under any law.

5. Right to Reinstatement and Compensation

An employee who is exonerated after suspension is entitled to reinstatement and may claim compensation for the period of suspension if it was without pay. The courts have awarded damages and back pay in cases where the suspension was unjustly applied or prolonged without resolution. In Mobil Producing Nigeria Unlimited v. Udo Tom Udo,14 the Court of Appeal awarded damages and back pay to an employee who was unjustly suspended. The Court noted that the employer had acted arbitrarily by suspending the employee without pay in the absence of conclusive findings of misconduct.

Similarly, in ILOAT Judgment No. 3576 (2016), the ILO Administrative Tribunal ordered the reinstatement of an employee and awarded compensation for the period of unpaid suspension after determining that the suspension was without proper cause. The Tribunal emphasised the need to avoid punitive suspension measures in the absence of established guilt.

Duration of Suspension

The duration of suspension is a critical aspect of employment law that has sparked considerable debate regarding the appropriate timeframe for such action. There is no specific statutory provision in Nigerian law regulating the length of time an employee can be suspended, courts have held that suspension must not be unreasonably prolonged. Prolonged suspension without justifiable reasons may be deemed constructive dismissal or an unfair labour practice.15

In Akinyanju v. University of Ilorin,16 the Court of Appeal held that where suspension is unduly prolonged and unreasonably extended, it may constitute an unfair labour practice. The Court emphasized the need for employers to act promptly in resolving allegations of misconduct to avoid prolonged uncertainty for the employee.

In my opinion, an employer retains the right to suspend an employee for as long as an investigation remains ongoing. However, it is imperative that the employer keeps the employee adequately informed throughout the duration of the suspension. This ensures transparency and aligns with the principles of fairness inherent in the employment relationship. By maintaining open communication and ensuring the employee remains engaged in the process, the employer not only upholds the integrity of the investigation but also reinforces trust in the procedural framework governing such matters.

When an employee may lose these rights

An employee may forfeit these rights discussed above under certain circumstances, such as gross misconduct or explicit provisions in their employment contracts. For example, the right to payment during suspension may be lost if the contract expressly permits suspension without pay or if the employee is found guilty of serious misconduct.

Similarly, the right to a fair hearing may be deemed waived if the employee refuses to participate in the disciplinary process after being given a fair opportunity to do so. In Union Bank of Nigeria Plc v. Soares,17 the Court of Appeal held that an employee who engages in gross misconduct, such as fraud or theft, may be lawfully dismissed without notice or payment in lieu of notice, thereby losing the rights typically accorded during suspension or dismissal. In AfDBAT Judgment No. 101 (2013), the AfDB Administrative Tribunal upheld the summary dismissal of an employee who had been found guilty of gross misconduct. The Tribunal ruled that the employee had forfeited his rights to due process protections by engaging in conduct that justified immediate termination.

Conclusion

The rights of an employee under suspension are essential to maintaining fairness and justice in the workplace. In Nigeria, these rights are protected by constitutional provisions, statutory laws and judicial precedents. Employers must uphold these rights in their disciplinary processes to avoid infringing on the rights of their employees. International labor standards, such as those established by the ILO, provide valuable guidance for promoting equitable practices.

However, employees must recognise that these rights are not absolute and may be forfeited under certain circumstances, particularly in cases of gross misconduct. A balance between employee rights and employer prerogatives is essential for fostering a fair and productive work environment.

Author:

Chibuzo Ofoha LL.M, Associate Member C.Arb (UK), Senior Associate at Patreli Partners, Legal Practitioners and Arbitrators

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  1. Akinyanju v. Unillorin (2005) 7 NWLR (Pt. 923) 87 ↩︎
  2. University of Calabar v. Esiaga (1997) 5 NWLR (Pt. 502) 719 ↩︎
  3. Constitution of the Federal Republic of Nigeria 1999 (as Amended) ↩︎
  4. (1988) 3 NWLR (Pt. 80) 25 ↩︎
  5. (2011) LPELR-1503(SC) ↩︎
  6. ILO Convention No. 158 ↩︎
  7. (2008) LPELR 3046 (SC) ↩︎
  8.  (1998) 4 NWLR (Pt. 545) 249 ↩︎
  9. S.P.D.C. (Nig.) Ltd. v. Emehuru (2007) 5 NWLR (PT. 1027) 347 ↩︎
  10.  ILO Convention No. 95, Article 8 ↩︎
  11.  (2010) LPELR-1793(SC) ↩︎
  12. (2017) 18 NWLR (PT. 1598) 454 ↩︎
  13. Unreported SUIT NO. NICN/LA/326/2014 ↩︎
  14. (2008) LPELR-8440(CA) ↩︎
  15. Mrs. Dayo Buluro v. Nigerian Institute of Public Relations – Unreported Suit No. NIC/LA/23/2009 ↩︎
  16. (2005) 7 NWLR (Pt. 923) 87 ↩︎
  17. (2012) LPELR-8018(CA) ↩︎