Employment Suspension: A Guide for Employers
Employment suspension can pose complex challenges for both employers and employees in terms of ensuring compliance with legal requirements, and reputational, emotional, and sometimes financial damage. It is essential for employers therefore to have a solid understanding of the legal framework surrounding suspensions to navigate it effectively and ensure fair and lawful procedures are followed. In this blog, we will explore the concept of employment suspensions and delve into the key considerations for employers through relevant new case law that sheds light on this area.
Understanding Employment Suspensions
In Ireland, employment suspensions refer to the temporary removal of an employee from their regular duties and workplace pending an investigation or a disciplinary process. Suspensions are often used when there are serious allegations of misconduct, pending the outcome of an investigation, or to protect the integrity of the workplace during an internal inquiry. It is a serious step that should be taken by employers cautiously and in compliance with employment law and relevant case law.
The main sources of legislation on this topic include:
- Unfair Dismissal Acts 1977-2015. These acts outline the grounds on which the employer can lawfully terminate an employment contract. It is important for employers to ensure that a suspension does not infringe on an employee’s right to fair procedures or potentially lead to an unfair dismissal claim.
- Employment Equality Acts 1998-2015. These acts prohibit discrimination in the workplace so employers must ensure the suspension does not result in discriminatory treatment or disadvantage to any employee.
- Code of Practice on Grievance and Disciplinary Procedures. While not legally binding, this code provides guidelines for employers on how to conduct grievance and disciplinary processes fairly. It is also noted that the provisions of the code are often used as evidence in employment law cases and therefore failure to abide by them will weaken an employer’s defense.
Recent Landmark Case
In a recent landmark case, O’Sullivan v Health Service Executive (HSE), the Supreme Court of Ireland provided some important insights into the legal landscape surrounding employment suspension. Dr. O’Sullivan was a gynecologist with an unblemished disciplinary record. To further his ongoing research, he decided to insert a small balloon catheter into five women during a hysteroscopy procedure they were undergoing. None of the patients were informed that this was being done, nor was their consent sought. Once management became aware, they instigated an investigation by a third party and suspended Dr. O’Sullivan with pay, as “by reason of the conduct of a consultant, there may be an immediate and serious risk to the safety, health or welfare of patients”.
Following extensive litigation and bringing the case to the Supreme Court, it was decided that suspending the claimant was justified with enough evidence that he might have been a risk to the patient’s health and safety. The Supreme Court issued a separate judgement with some reflections on the legal issues which can arise in disciplinary proceedings:
- A decision to suspend has an impact on an individual, which may affect their reputation, and where that person is engaged in a highly skilled occupation, may have the effect of making it more difficult for them to resume their occupation, even if the disciplinary proceedings do not result in their dismissal.
- A degree of fair procedures must be applied before deciding to suspend, which implicitly states employers must have a meeting with an employee to notify them of their intention to suspend, give them reasons for it and provide an opportunity for the employee to respond and appeal.
What Should Employers Consider?
An Employer’s decision to suspend should not be taken lightly and the necessity for the suspension should be considered. If the employers opt to suspend an employee, they must consider:
Reasonable Grounds: Employers should have reasonable grounds to believe that the employee’s presence in the workplace may prejudice the investigation or pose a risk to the organization.
Justified suspension includes:
- Prevention of repetition of the alleged misconduct
- Prevention of interference with evidence
- Protection of other persons
- Protection of the employer’s business reputation.
It is essential to establish a clear connection between the allegations and the need for suspension.
Before Carrying Out a Suspension: This landmark case suggests that the Employer should now meet with the Employee, inform him/her that the Company are considering suspension, why it is being considered and allowing the employee to respond to the same. It is important to note that during this suspension meeting the right to respond relates to the suspension only not to the allegations at hand. The employer could also provide the employee with an opportunity to take paid leave as an alternative to suspension to protect the employee’s reputation.
Fair Procedures: Employers must ensure that any suspension is carried out in accordance with fair procedures. Employers should be prepared to re-visit the decision to suspend if any new evidence comes to light which undermines the rationale for the suspension.
Timeliness: Employers should aim to resolve the matter promptly and conclude the investigation within a reasonable timeframe. Unnecessarily prolonged suspensions pending the conclusion of an investigation can be viewed as unfair and may pose a challenge during any potential litigation.
Confidentiality: Employers must maintain confidentiality during the suspension and investigation process to protect the rights and reputation of the employee. Disclosure of sensitive information should be limited to those directly involved in the process.
Employment suspensions require careful consideration, adherence to fair procedures, and a sound understanding of relevant case law. Employers must ensure that suspensions are carried out fairly, and are thoroughly justified. By navigating employment suspension in a fair and transparent manner, employers can minimise the risks associated with employment law cases.
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The information in this article is provided as part of the Action HR Services Blog. Specific queries should be directed to a member of the Action HR Services Team and it is recommended that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct on 06/07/2023.