18 May Suspension Do’s & Don’ts

The recent determination in the High Court case of the Governor and Company of Bank Of Ireland v Reilly [Justice Noonan 17/04/2015)offers some useful guidance in how to correctly manage the difficult area of suspension of employees pending the completion of an investigation into alleged gross misconduct.

In this case (Governor and Company of Bank of Ireland v Reilly) an employee with an exemplary record was suspended following the detection of inappropriate emails in his inbox and was then subsequently dismissed for gross misconduct. During the investigation that took place, inappropriate emails were found in the mail boxes of 5 employees in total, but only three including Mr Reilly were suspended and no explanation was subsequently offered as to why all the employees were not suspended.

The Court ordered that Mr Reilly be re-instated and said that the employer had acted in a pre-determined manner which was totally unfair and injust to the employee and highlighted a number of issues with the Bank’s suspension and disciplinary process including that the person who made the decision to suspend did not even view the emails that were deemed inappropriate, no evidence was produced to justify the suspension being necessary to facilitate the investigation, the email policy did not indicate clearly the potential sanctions that could be imposed for breaches and the employee was not the instigator of the circulation trail of the emails.  The Court also noted that the person who actually sent the most offensive email was subsequently promoted and deemed that ultimately the dismissal of Mr Reilly in the circumstances was disproportionate and had destroyed his career.

In respect of implementing a suspension in order to carry out an investigation, the Court noted that as it is such a serious measure, it must be for a specific purpose and generally should be used only to facilitate the conducting of an investigation and any resultant disciplinary process, to prevent further occurrences of the conduct, to protect evidence or to protect an employer’s reputation.

And a reminder about some of the general basic requirements of a suspension that is not punitive, it must always be paid, reasons for the suspension should be clearly indicated and it must only be for the minimum period that is required to ensure that no unnecessary damage is done to an employee’s reputation.  It is also helpful to spell out the requirements on the employee to co-operate with the period of suspension and to attend all meetings in a timely manner as required.