Suspending an Employee on Pay Pending an Investigation-Vital Lessons from the High Court

suspension with pay

Suspension with full pay.

Not a problem for the employer?

Think again.

A High Court decision from April, 2015 provides helpful clarification about suspending an employee as a precautionary measure pending an investigation.

This would be the default position for many employers where there is an allegation against an employee and an investigation is to be carried out to look at the merits of the allegations.

The case of THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND AND JAMES REILLY took a close look at suspending the employee on full pay in this case.

Mr. Reilly was an assistant branch manager with the Bank of Ireland and an allegation arose about the breach of the Bank’s internet/email policy due to the sending of inappropriate/pornographic emails by some members of staff. Mr. Reilly’s branch manager informed him verbally that he was being put on paid suspension as “an issue had arisen in relation to emails”. He received no further information at the time of his suspension, and his branch manager was not aware of the detail of the allegations. He was simply delivering the message from his superiors at Head Office.

Suspension a “very serious matter”

The High Court recognised that suspending someone-even on full pay-is a very serious measure with potential reputational damage which may never be overcome, even if the employee is subsequently found to be not guilty of the allegations. It held that a suspension should only be imposed “after full consideration of the necessity for it pending a full investigation” of the issues.

The Court identified four circumstances where it would be justified:

  1. To prevent repetition of the conduct complained of;
  2. To prevent interference with evidence;
  3. To protect individuals at risk from such conduct; or   
  4. To protect the employer’s business and reputation.

In this case the Court held it was unnecessary to suspend Mr. Reilly as the bank had safeguarded the evidence, the allegations were so serious that it was improbable that Mr. Reilly would transgress again, and knowledge of the allegations was not widespread so there was no danger of reputational damage.

How does this affect you as an employer?

Here are 7 takeaways:

  1. Have a disciplinary procedure
  2. Ensure it provides for paid suspension pending the outcome of an investigation and disciplinary procedure
  3. Give the employee the opportunity, when being told of the reasons for the suspension,to explain or defend himself
  4. Even though the employee is not entitled to “the full panoply of fair procedures” he is entitled to “at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.” This did not happen here as Mr. Reilly’s line manager was simply acting on instructions from Head Office and was not actually aware of the allegations.
  5. Write to the employee giving him an explanation as to why, in broad terms, he is being put on paid suspension
  6. Details of the allegations should be set out in the invitation to the investigation meeting letter
  7. Carry out the investigation, and if appropriate the disciplinary hearing, without delay.

“Justice delayed is justice denied”, and the longer the employee is out the greater danger of reputational damage.

The Fair Dismissal test

The Court also reaffirmed the view to be taken by Courts and decision makers in respect of a fair dismissal. The Court will not substitute its view for the view of the reasonable employer.

The Unfair Dismissals Act 1977 (as amended) states:

  • in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,…

This section makes it clear that the reasonableness of the conduct of the employer needs to be considered.

The Court agreed that the correct test is this:

‘was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.(British Leyland UK Ltd v. Swift [1981] IRLR 91, Lord Denning MR).

As Judge Linnane stated in her decision in Allied Irish Banks v. Purcell [2012] 23 ELR 189

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken

In conclusion, this case is well worth reading and drawing valuable lessons from for employers and Hr professionals because it is clear that the default position of suspending without pay, in all circumstances, in order to investigate allegations is inappropriate.

Read the full decision here: Bank of Ireland v James Reilly [2015] IEHC 241

 

Suspected Gross Misconduct-2 Vital Points About Suspending the Employee

gross misconduct

Where the employer suspects an employee may be guilty of gross misconduct he should suspend the employee on full pay in order to carry out an investigation.

There are 2 important things about suspending the employee in these circumstances:

1.      The suspension should be carried out as soon as possible

The reason for this is simple: if the employer is alleging the misconduct is actually serious and “gross” he would weaken his position significantly if he leaves the employee in the workplace.

The Employment Appeals Tribunal (EAT) held in a case involving the alleged theft by a shop worker of money from the shop till that the failure by the employer to suspend the employee immediately, and let him continue to work on the Saturday prior to the disciplinary meeting on Monday:

“it was noted by the Tribunal that while the respondent stated that they considered this, a very serious matter, the claimant was allowed to work for them on the Saturday prior to the meeting on the Monday.”

This case- Duffy -v- Hugh McAvoy T/A ‘Talk To Me’ (UD 1048/2009)-saw the employee winning €17,000 for unfair dismissal.

The employee should be told quite clearly that the suspension is not an adverse finding against him and that this is a precautionary measure, and the suspension will only last until he investigation has been completed and the employer has made a decision.

2.      The employee should be suspended with pay

If the suspension is not an adverse finding against the employee, and it is merely “precautionary” and to allow an investigation be carried out, then it follows that as the employee is innocent he/she is entitled to be paid, in accordance with his contract of employment.

This can be hard for employers to swallow, particularly where they feel that the evidence is overwhelming. But carrying out an investigation with a pre-ordained outcome in mind is a dangerous, and easy, trap for an employer to fall into.

Suspending without pay

Disciplinary procedures in the workplace are intended to be corrective rather than punitive-suspending an employee without pay is clearly a disciplinary, punitive measure.

It would also make it difficult for the employer to take any further step such as issuing a warning as the employer would run the risk of imposing an excessive and disproportionate penalty. Not being able to issue a warning would then mean you were no further on through the disciplinary procedure with an employee who is suspected of gross misconduct.

For these reasons, suspending an employee without pay is not recommended to employers.

You may also be interested in Fair Procedures in Dismissing an Employee.