The Labour Code of Lithuania (LCL) stipulates merely a single occasion when the employer is allowed to suspend an employee from work (duties). The LCL (Article 123) defines that if an employee comes to work intoxicated with alcohol, narcotic or toxic substances, an employer shall not allow him to work on that day (shift) and shall suspend his wage. This suspension is unpaid. In addition, the LCL states that other grounds for suspension can be established in other laws. However, such cases are exceptional (e.g. public servant suspension from office for misconduct). The foregoing rule of suspension has tended to be interpreted by the courts peremptory and narrowly.
The issue arises when the employer would like to terminate the employment contract on its own initiative without an employee’s fault and with the notice period being sustained. Under the LCL this notice period shall be at least two months and for some categories of workers (e.g. employees raising children under fourteen years of age) ̶ four months. During this period the worker liable to dismissal can cause irretrievable damage to the company, however the legal background to suspend from work such worker over the notice period is not established in the LCL or other laws.
The employee E.M. brought proceedings against the employer Barclays Technology Centre Limited (LT) for unfair dismissal. Among other claims the issue of suspension from work during the notice period was raised.
E.M. was dismissed for insufficient professional skills and poor conduct. There was not a case for disciplinary sanction to dismiss, but the employer’s right to terminate the employment contract on the initiative of the employer without any fault on the part of an employee. E.M. was given a notice of termination and immediately after the notice his duties were suspended. The employee was directed not to perform their employee’s duties during the notice period. The employer, however, paid wages and other requirements related to an employee’s guarantees. The employer’s right to serve suspension was grounded not on an explicit provision of law, but on the employment contract were such right was established.
The Supreme Court of Lithuania (the Court) by its decision of February 23, 2015 (case No. 3K-3- 48/2015) justified the employer’s decision to suspend E.M. from their work during all the notice period. The Court held that the corresponding provisions of the LCL (Articles 129 and 130) shall not be interpreted as precluding the employer from exercising its right established in the contract to suspend an employee from work in preservation of the employee’s rights and guarantees (salary, the right to receive job offers for another position, etc.).
The Court emphasised that the termination of the employment contract was grounded on circumstances related with the behaviour of E.M. Furthermore, the employee reserved all their vested guarantees. Therefore, the Court in respect of the implementation of the suspension right of the employer shall not be found in any violation of laws.
The foregoing decision is significant in several aspects: firstly, it shows that the Court realistically sees the actual situation and the letter of the laws, which, regrettably, is not always in time with reality. Secondly, the Court softened the LCL Article for suspension by showing that the suspension can be exercised not only on the grounds explicitly set in the laws; and thirdly, the decision is a sign for the employees to review their employment contract drafts and encourages the involvement of possible additional backgrounds for the suspension of an employee from their duties (work). Nevertheless, the shadow of suspension rights remains. Firstly, it is not clear whether the Court would justify a suspension case if it had not been established in the employment contract. Secondly, whether it would be justified if the suspension was unpaid, especially considering the circumstances when termination is grounded on the conduct of the worker or (and) lack of professional skills, which is beyond the disciplinary liability, and actually within the notice period the employee does not create any added value to the company. In this respect, clarification from the Court is in our view needed.
Author: Inga Klimašauskienė, GLIMSTEDT Senior Associate
The article published in eela.org