The Supreme Court have delivered a judgment on 10th May 2023 concerning the issue of suspending an employee pending an investigation.
It its decision in the case of O’Sullivan v HSE  IESC 11 the Supreme Court approved the test set out in the English case Braganza v BP Shipping  1 W.L.R. This case held that
“… a decision maker’s discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith and genuineness and the need for absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused.”
The Supreme Court has determined in O’Sullivan v HSE  IESC 11 that the decision to suspend could only be challenged where no reasonable decision maker could have arrived at such a decision. This would include situations where the decision maker had failed to take into account relevant matters or had failed to exclude irrelevant ones.
The Supreme Court did emphasise the importance of fair procedures when arriving at a decision to suspend. It held that if an employer is considering suspending an employee it should ensure a number of things:
- The decision to suspend must not be irrational or perverse and must be evidence based and necessary
- The employee should be given the opportunity to explain him/herself before the decision to suspend is finalised
- There must be a legal basis for the proposal to suspend; this could be contained in the staff handbook, the contract of employment, the disciplinary procedure in the workplace but there must be some legal basis for the decision to suspend
After suspension the investigation should be carried out “with all practicable speed”.
The decision to suspend an employee pending investigation can have serious consequences for an employee, even if the employee is later cleared. The decision, therefore, to suspend must be weighed up carefully and based on the alleged wrongdoing/misconduct/evidence.
The remedy open to an employee in a situation where the suspension is unfair or perverse or irrational or devoid of natural justice is to apply to the High Court for an injunction preventing the suspension.
Read the full decision of the Supreme Court here.