Legal Issues in Suspension of Employee in Nigeria

Suspension is one of employer’s powers at common law, which Nigerian courts also uphold. Amongst all disciplinary powers vested in an employer, the power to suspend a staff member is the most versatile in the sense that it can be adopted for almost all kinds of employee’s infractions. Suspension can be a means to an end, or an end in itself. It is a means to an end where it helps in unraveling a misconduct; a suspension is an end in itself if it serves as a penalty for misconduct. In both instances, different considerations apply. Every #HR Manager must be guided on what a suspension is deployed to achieve. The purpose for which suspension is employed will largely determine whether it can be imposed on a worker out rightly or only after fulfilling some fundamental requirements of contract or law.

The power to suspend a worker can hardly be faulted except in limited cases bordering on its duration and some peculiar cases where it is coupled with loss of wages or other rights. Even in those exceptional cases, the suspension can only be challenged where it is imposed in breach of contract or law e.g., without fair hearing, especially if the suspension is intended to serve as a punishment.

What Suspension Connotes

The true meaning and proper application of suspension seem to elude many HR Managers given how our law report is replete with cases of mismanagement of otherwise simple employment matters. The import and purpose of suspension must be well understood by every employer to avoid taking a wrong disciplinary decision that could expose a company to liability claims.

The true meaning of suspension must be every #HR manager’s guidepost and should be called in aid in any matter where there is a question as to whether what is to be imposed on an employee is truly a suspension or constructive termination (disguised as suspension). Failure to understand the true meaning of suspension leads to potential misuse or abuse of the power to suspend.

A popular judicial effort at defining “suspension” was made in Esiaga v. University of Calabar (2004) 7 NWLR (Pt. 872) 366 by Honourable Justice Pats-Acholonu, JSC.

According to the Supreme Court at page 386 paragraph H of the law report, “The verb ‘suspend’ from which the word suspension (which is a noun) emanates means in the context it was used essentially, “to defer, interfere, interrupt, lay aside, temporize, hold in abeyance”. That term cannot be construed to mean “terminate, extinguish, bring to an end”. It means what it says, that is to cause to abate for a while or halt midway but not to bring to an end. It always connotes a state of affairs that should wait until a certain event takes place.”

The Supreme Court further held that a suspension connotes a state of affairs that should wait until a certain event takes place.

Also, in Longe v. FBN Plc (2010) 6 NWLR (Pt. 1189) 1 at page 60 paragraph D – E, the Supreme Court held that “suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.”

The fact that an has been placed on suspension does not mean that his/her employment with the company has been terminated. It only means a temporary deprivation or stoppage of privileges and rights of a person as a result of a disciplinary procedure that should be for a fixed or reasonable period. During the period of suspension, the suspended employee still retains his employment until it is finally determined. See Mobil Producing Nigeria Unlimited v. Effiong [2011] LPELR-CA/C/204/2009.

Lawful Duration for Suspension

There is no Nigerian law which sets out the duration of suspension so employers and workers can agree on the length of suspension. However, the law frowns against indefinite suspension and such imposition is usually declared as wrongful and/or unlawful, as pronounced in several judicial decisions of the Supreme Court.

Usually, employment contract spells out cases when an employee may be suspended and for how long. Whatever the employment contract provides will be interpreted by the court in resolving any dispute arising from an employee’s suspension unless the contract is illegal, void or contrary to public policy or international best practice as enjoined by Section 254C (1) (f) of the 1999 Constitution (as amended).

In Nika Fishing Ltd v. Lavina Corp. (2008) 6 – 7 SC (Pt. 11)200; (2008) 16 NWLR (Pt. 1114) 509 the Supreme Court held that- “Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interprete that contract and to give effect to the wishes of the parties as expressed in the contract document…. It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the court, can determine the terms of contract between parties thereto. The duty of the court is to strictly interprete the terms of the agreement on its clear wordings.”

Stemming from the above and other similar authorities along that line, where a contract provides a maximum duration of suspension, the employer must not exceed the agreed maximum. One can see in Fedpoly, Idah v. Egbeke (2023) 1 NWLR (Pt. 1865) 227, where the respondent (a staff of Federal Polytechnics, Idah) was, amongst others, suspended indefinitely, without salary, and his bank account was frozen and he was restrained from moving out of Idah town where the Polytechnic is located, the Court of Appeal affirmed the trial court’s decision which gave judgment in favour of the respondent.

According to Agim, JCA at page 260 – 261 paragraph H – B in the Fedpoly, Idah case: “The suspension also violates S.17(4) of the Act as it is indefinite, without any salary, freezes the bank account of the respondent and restrains the liberty of the respondent and his freedom to move out of Idah, where the Polytechnic is located. It is clear from the express words of that subsection, that a suspension by the Rector of the 1st appellant or 2nd appellant pursuant to subsections and of S.17 shall not exceed 3 month, and the suspended officer shall be paid half salary and within 3 months period of his suspension, his case shall be placed before the 2ndappellant to consider the case against him and come to any of the decisions prescribed in that subsection. None of these steps was or has been taken in respect of the suspension of the respondent.”

Please note that where a contract of employment is silent on the duration of suspension, then an employer can only suspend a worker for a reasonable period. What will amount to a reasonable period is a question of fact. For instance, if the contract requires one month’s notice to terminate it, it may be unreasonable to suspend an employee beyond one month.

It is wrongful to deploy suspension to achieve other purpose for which it is neither designed nor recognized by the applicable law or relevant contract. The consequence is an exposure to liability. For instance, suspension is not designed to be indefinite. See Henry Eyo v NTA-Star TV Network Limited (Unreported Suit No ABJ/151/2019, judgment delivered on 22^nd March 2021, per Hon.Justice O.O Oyewumi).  

The recent Supreme Court’s case of Dangote Cement Plc. Ager [2024] 10 NWLR (Pt. 1945) 1 presents an interesting development in the employment law of indefinite suspension. In that case, the respondents were employees of Benue Cement Company Plc which placed them on indefinite suspension without pay over certain misconduct. The respondents sued and obtained an interlocutory injunction against the company restraining the company from taking further disciplinary action against them. During the pendency of the action, Dangote Cement Plc acquired Benue Cement Company Plc. Thereafter, whilst the case was still going on, Dangote Cement Plc terminated the respondents’ employment without notice or salary in lieu.

Both the trial Court and Appeal Court held that the suspension of the respondents continued till the date of judgment and that the purported termination was unlawful having been done in disobedience of the interlocutory injunction. Consequently, both courts awarded to the respondents their arrears of salaries and allowances from the date of suspension till the date of judgment.

However, the Supreme Court disagreed and held conversely as follows, that:

1. the interlocutory injunction was against disciplinary action and not against termination, and that termination of employment was not a disciplinary action against the employees and therefore the termination could not have been restrained by the interlocutory injunction (see page 35, paragraph E).
2. the subsequent termination of employment of the suspended staff without requisite notice or salary in lieu was wrongful but not null and void or invalid since the termination was done in the exercise of the employer’s power to terminate without giving any reason and the remedy available to the respondents is damages (see pages 37–38, paragraphs H – A); and
3. the respondents were only entitled to their arrears of salaries and allowances from the date of their indefinite suspension to the date of the wrongful termination of their employment without notice or salary in lieu (see page 40, paragraph H).

Whilst it is impossible to fault the Supreme Court’s decision on the effect of termination without notice or salary in lieu, it is however difficult to find any authority in support of the apex court’s conclusion that termination of employment is not a disciplinary action or measure against an employee. Unfortunately, the Supreme Court itself did not give any clue or cite any authority to shed more light on how it reached the above conclusion. The effect of the decision is that the aggrieved staff’s salary arrears would only be calculated to the date of the wrongful termination rather than the date of judgment.

It is not clear if the Supreme Court recognizes the jurisdiction of the court to issue an injunction restraining employers from terminating the service of aggrieved employees during the pendency of an action filed by the suspended employees given its near imperceptible distinction between the “further disciplinary action,” which was restrained by the interlocutory injunction and the “termination of employment,” which the apex court interpreted narrowly and held to be outside the purview of “disciplinary action” and therefore not restrained by the interlocutory injunction.

Effect of Suspension Pending, During or After Investigation of Employee Misconduct

It is important to note that different legal implications may arise from suspension before, during and after investigation of an employee’s misconduct. Under Nigerian law, there is no liability exposure for a company’s decision to suspend an employee if the suspension is imposed before or during an investigation into the employee’s misconduct for the sole purpose of allowing a fair process of enquiry. Provided, of course, that the process of enquiry must follow promptly thereafter and the suspended employee is given fair hearing over the allegation. Any court action hurriedly filed against the employer will fail for being premature. See Esiaga v. University of Calabar (2004) 7 NWLR (Pt.872) 366.

However, where an employer suspends an employee after the conclusion of an investigation, the suspension is tantamount to a punishment. The employer should ensure that the affected employee has been justifiably implicated in the allegation and he or she has been afforded a fair hearing opportunity to defend himself. By law, no person deserves punishment over an allegation unless he or she has been fairly heard over the allegation which he is to be punished. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.

Effect of Suspension without fair hearing

The Nigerian court is always minded to side with the employer on matters of suspension without fair hearing (particularly in cases of suspension pending or during investigation) unless the suspension is indefinite or intended to serve as penalty (in which case fair hearing rule must apply). In Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) 142 SC, the Supreme Court held that an employer can suspend an employee when necessary and such suspension cannot amount to a breach of the worker’s fundamental rights. See particularly Page 144, paras. C-D of the law report where BELGORE, J.S.C. held as follows: “Clearly, this is a matter of Master and servant, where master places servant on suspension pending investigation of corruption. Corruption is a serious crime and in the ivory tower, the University, it must not be allowed to linger for too long so as to minimize the damage to the academic atmosphere. This has no bearing with issues of Fundamental Rights under the Constitution of 1979 or the one of 1999.”

Also, UWAIFO, J.S.C. at page 144, paras. G-H held, thus: “The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety levelled against him can have a recourse to the Fundamental Rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights.”

However, where suspension is intended to serve as punishment for a misconduct which has been investigated or in which the employee is presumed guilty, the court would insist that the employer complies with the principles of natural justice. For instance,

In the case of R v. University of Cambridge (1723) 1 Str. 557, in which the University of Cambridge deprived a recalcitrant scholar of his degree on account of his having Insulted the Vice-Chancellor. He was not given an opportunity to proffer a defense, and Fortesque, J, observed as follows: “I remember to have heard it observed by a very learned man upon such an occasion that even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam, says God, where art thou? Hast thou not eaten of the tree? Therefore, I commanded there that thou shouldst not eat. And the same question was put to Eve also”.

Duty to Recall After Suspension vs Allegation of Abandonment

One curious twist in suspension cases is the preponderance of the employer’s duty to recall the employee back to work on the one hand and the employee’s obligation to resume work after serving a suspension on the other. The foregoing is better appreciated in practice than theory, so a hypothetical case may provide sufficient clarity. But let us consider the following hypothetical case.

If a Company suspends a worker by a suspension letter for a month, say 1^st to 30^th June, and after the suspension, the employee resumes on 1^st July but he is prevented at the gate from entering the business premises or he is asked by HR Manager to go back home and wait for further directive from the management. If employee waits for a week or two weeks without any call from the company, can the company claim that the worker is absent from work without lawful excuse or that he has abandoned his work (where the contract of employment provides for abandonment of work). Can the worker’s employment be deemed to have been terminated by abandonment?

The above is a complex question of facts and law. Did the employee sign a register or clock in? Is there a CCTV camera that can show his attempt to resume work? Did he send any email or letter to the management regarding his resumption? In our opinion, the employer should be obliged to issue a letter for the recall of a suspended employee after serving a suspension otherwise most employers will convert a suspension into abandonment in order to blame the employee for not returning to work.  

Also, abandonment being a misconduct, should not be available as a defence for an employer unless the affected employee has been first invited to explain why he should not be deemed to have abandoned his work. The absence of any invitation or recall letter from the employer should raise a presumption in favour of the employee.

When Suspension Amounts to Termination

An employee can treat a suspension as termination in some cases. Such termination is called constructive dismissal or discharge. The category of cases which may lead constructive dismissal is never closed but few cases touching on suspension have been judicially noticed. They include:

1. Indefinite suspension, see Henry Eyo v NTA-Star TV Network Limited (Unreported Suit No ABJ/151/2019, judgment delivered on 22^nd March 2021, per Hon.Justice O.O Oyewumi)

• Suspension without pay, see Olafimihan v. Nova Lay-Tech Ltd. (1998) 4 NWLR (Pt. 547) 608 and Anthony Momoh v Cedarwood School Limited (Unreported Suit No. NICN/PHC/50/2019, judgment delivered on November 17, 2021; per Hon. Justice Kola Olalere).
• Failure to recall a suspended worker after serving suspension or preventing the employee from resuming work after suspension in order for the employer to claim that the employee has abandoned his work, See Olalere v Olam Nigeria Limited (Unreported Suit No. KN/08/2009, judgment delivered on 25^th March 2021, per Hon. Justice D.E Isele).
• Where suspension is coupled with restriction to work tools like identity card, computer, email or intranet (See Olafimihan v. Nova Lay-Tech Ltd. (1998) 4 NWLR (Pt. 547) 608), and
• Where all privileges of employment are yanked off, where pension contribution, employee tax and staff payments are stopped, and similar restrictions.

For example, in Olafimihan v. Nova Lay-Tech Ltd. (1998) 4 NWLR (Pt. 547) 608, where a letter of suspension of an employee (Exhibit 4) was issued in complete violation of the conditions of service which empowered the employer to suspend any worker without pay for only a maximum of two weeks, the Court of Appeal held that the fact that Exhibit 4 not only suspended the appellant indefinitely without pay from the services of the respondent but also restricted his presence at the premises of the respondent company, showed a clear intention of the respondent to dispense with the services of the appellant. Thus, intention to terminate the services of the appellant can rightly be read into the contents of the suspension letter.

Remedies for Unlawful Suspension

Under Nigerian law, where there is a wrong, there is a remedy –so a victim of unlawful suspension is not without some remedy. The nature of employment will determine the type of remedy an unlawfully suspended employee will get from the court.

In a statutorily flavoured employment, the employee may be reinstated back to the employment or office with all arrears of salaries, allowances and other benefits. See Bamgboye v. Univ. of Ilorin (1999) 10 NWLR (Pt. 622) 290.

However, in a master-servant relationship, an unlawfully suspended employee will only get his arrears of salaries and allowances up to the date of eventual termination or judgment (if there is no termination), he cannot be reinstated. See Dangote Cement Plc. Ager (supra).

So, cogent facts and evidence must be respectively pleaded and led as to the nature of employment, the employment contract, due salaries and allowances which the court is prayed to grant.

Source: @Koriatlaw.com