by Ciaran Doyle , Breda O'Malley June-23-2023 in Employment Law
There have been several significant legal developments concerning workplace suspensions in recent years. We distil below some key principles which have emerged in case law.
- Legal basis. There must be a legal basis for a suspension such as an express term in a contract authorising suspension. Courts will only imply a term into a contract on an exceptional basis.
- Legitimate grounds. Even where there is a legal basis, an employer must be acting to protect itself from the possible contention that it has failed to properly deal with the interests not only of the employee concerned, but also other employees and potentially other persons with whom the employer is involved.
- Holding versus punitive. There are two types of suspensions: holding and punitive. Neither should be taken lightly and a holding suspension should only be taken after full consideration of the necessity for it pending a full investigation of the conduct in question. Usually, holding suspensions are justified to prevent a repetition of the conduct complained of, interference with evidence or to protect persons at risk from such conduct.
- Reputational Damage. The Courts are more alive to “reputational damage which may be, or become, irreversible”[1] irrespective of the outcome of any disciplinary investigation. The Courts also recognise the psychological and financial damage suspensions can cause for employees who are suspended.
- Consider alternatives. Employers should consider the necessity of the suspension. There may be other viable options, e.g. remote working or working in a different office.
- Period to be kept to a minimum. The period for which an employee is on suspension must be kept to a minimum. A delay between completing an investigation into a wrongdoing during which the plaintiff was suspended may be deemed inordinate and unjust. It is imperative that the disciplinary process should proceed and be concluded as speedily as reasonably possible.
- Reviewing suspensions. There has been significant emphasis in recent case law on an employer’s obligation to review a suspension without any need for the employee to seek such a review: the employer is “duty bound to re-evaluate the necessity for the continuation of that suspension”[2]. This is a matter of basic fairness, irrespective of whether a review is specifically sought.
[1] O’Sullivan v HSE [2022] IECA 74.
[2] O’Sullivan v HSE [2022] IECA 74.
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About the Author
Ciaran Doyle
Ciarán is a solicitor on the Employment team at Hayes solicitors. He advises international and indigenous organisations as well as senior executives in diverse sectors on all aspects of employment law.
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.