{"id":1257,"date":"2024-01-18T11:11:53","date_gmt":"2024-01-18T03:11:53","guid":{"rendered":"http:\/\/www.royalaw.com\/en\/96-is-it-legal-for-my-company-to-suspend-an-employee-for-a-performance-investigation\/"},"modified":"2024-01-18T11:11:53","modified_gmt":"2024-01-18T03:11:53","slug":"96-is-it-legal-for-my-company-to-suspend-an-employee-for-a-performance-investigation","status":"publish","type":"post","link":"http:\/\/www.royalaw.com\/en\/96-is-it-legal-for-my-company-to-suspend-an-employee-for-a-performance-investigation\/","title":{"rendered":"96.Is it legal for my company to suspend an employee for a performance investigation?"},"content":{"rendered":"

Answer: Employment law and relevant laws and regulations do not have specific provisions on suspension investigation. Because an suspension may impose adverse effect to the employee\u00a1\u00afs reputation and psychology, normally, the employer\u00a1\u00af initiation and conduct of suspension investigations on the employee must be fair and reasonable.<\/p>\n

From the perspective of case law, first decisions of suspension investigation must be based on reasonable facts,1<\/a><\/sup>Chengdu Feida Real Estate Co., Ltd. and Yang Xuefen Labor Dispute Appeal Case Chengdu Intermediate People’s Court of Sichuan Province Civil Judgment (2015) C.M.Z.Z. No.4910. The court held that the employer unilaterally decided to initiate a suspension investigation without evidence of employees violating company rules was unlawful.<\/span>and the reasons for suspension investigation should be that the employee has seriously violated the company rules or that it would negatively affect the employer\u00a1\u00afs business operation without a suspension investigation. Second, when the employer has a legitimate reason(s) to suspend the employee, it might be able to reduce the employee\u00a1\u00afs wages (for example, only pay the local minimum wage). 2<\/a><\/sup>Judgment of Second Instance of Labor Dispute between Qi Wei and Dalian Bangqi Island Hotel Group Co., Ltd. Civil Judgment of Dalian Intermediate People’s Court of Liaoning Province (2022) Liao 02 Min Zhong No.5925. Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Tao Mingda and Chengdu Organic Chemistry Co., Ltd. of Chinese Academy of Sciences Civil Ruling of Sichuan High Court (2021) Chuan Min Shen No.1278.<\/span> However, the company rules allowing pay cut or paying full wages to the employee during the suspension investigation will render the suspension investigation more legitimate.3<\/a><\/sup>Civil Judgment of Second Instance on the Labor Dispute Case between Feruni Ceramiche Sdn Bhd and Xi Jiaojun, Zou Qifeng, Xie Shuren, etc., Civil Judgment of Intermediate People’s Court of Foshan City, Guangdong Province (2020) Yue 06 Min Zhong No.1024. The court seems to think that the full wage payment to the suspended employee’s wage during the suspension investigation makes the suspension investigation measure more legitimate.<\/span> Lastly, suspension investigations cannot be indefinite and should be completed within a reasonable period.4<\/a><\/sup>Shenzhen Haige Jingu Industrial Technology Co., Ltd. and Kaolin Labor Dispute Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2019) Yue 03 Minzhong 20640 No.<\/span>If the ground for an suspension investigation is untenable, the investigation may be considered illegal, the employer must provide a conclusion stating the employee being not guilty and pay the employee’s full wages for the suspension investigation if there is a pay cut.5<\/a><\/sup>Civil Judgment of Second Instance of Hu Bin’s Labor Dispute Civil Judgment of the Second Beijing Intermediate People’s Court (2022) Jing 02 Min Zhong No.7501.<\/span><\/p>\n

An appropriate way to enhance the lawfulness of an employer\u00a1\u00afs action of suspension investigation is to stipulate grounds, procedures, and measures of suspension investigation in its company rules. <\/p>\n

Therefore, whether your company\u00a1\u00afs action of suspension investigation is legitimate depends on comprehensive assessments on whether the reasons for the suspension investigation is sufficient, the extent of reducing the employee\u00a1\u00afs wages during the suspension investigation, the timeframe in which the investigation is completed, and whether your company has listen to and consider explanations by the employee before and during the investigation. Establishing specific provisions for suspension investigations in your company rules is also a recommended practice, particularly if the grounds for the investigation are performance issues with low culpability.<\/p>\n

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