Owing to the popularity of recent articles on Suspension, this weeks Landmark Case looks at the matter of suspension of an employee pending a disciplinary hearing. Para.4 (12) of the Code of Practice states that “an employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline”. An employer’s right to suspend was also recognised by the High Court in the case of Morgan -v-Trinity College Dublin [2003] IEHC 16. Background The plaintiff was a senior lecturer in the English Department in Trinity College Dublin. In February 2002 a dispute arose between him and members of his faculty in relation to the appointment of a new member of staff to the faculty, as a result of which the plaintiff disseminated allegations about other members of the faculty throughout the college. The second named defendant investigated complaints made against the plaintiff by his colleagues and submitted a report to the Board of the College in September 2002 recommending that the plaintiff be suspended without pay for a period of three months and receive a formal warning. However, under the disciplinary procedures of the college, where the member of staff did not consent to the recommended penalty, the matter had to be referred to a disciplinary panel for a de novo hearing. In this case, there was no such consent and the matter was duly referred to a disciplinary panel under the chairmanship of the third named defendant which was due to hear the matter on December 11, 2002 Summary On October 7, 2002, following a new allegation of physical intimidation and harassment of a female member of the faculty the previous day, the plaintiff was suspended with pay with immediate effect pending a hearing of all matters before the disciplinary panel in December. The plaintiff sought an interlocutory injunction restraining the third named defendant from holding a disciplinary hearing on the grounds,
- that he did not have the right to challenge his accusers during the investigation by the second named defendant;
- that there had been a failure on the part of the second named defendant to comply with the time-limits set out in the disciplinary procedures of the college;
- that the suspension should be lifted by reason of its duration and that the reference of additional grounds arising from the incident in October 2002 was not in accordance with college procedures.
In the decision on the case it was stated that “It was made clear therefore that the suspension was not an end in itself but rather a stage in a process. A parallel or converging process was also inevitable arising from the investigation and report into the February complaints and the plaintiff's refusal to accept or consent to the Dean's recommendation as to sanction. From my review of the papers I find no evidence of malice or ill-will in any of the Senior Dean's behaviour towards the plaintiff. On the contrary he had clear duties and obligations under the college statutes. In referring the complaints to the disciplinary panel he had at all times, in my view, behaved with total propriety.” What can be learnt from this:
- the decision taken to suspend the employee was not unfair as it was compliant with internal rules and procedures, and so provides guidance on how to avoid breach of fair procedures when considering suspension of an employee.
- Having an internal disciplinary procedure which provides for suspension of an employee is paramount as the company then are merely utilising the procedures they have made the employees aware of
- the investigation should be carried out to establish the facts and whether disciplinary action should be taken, this should not be determined before the disciplinary has been held.
Similarly, in Deegan v Minister for Finance (2000), civil servants in the Department of Finance claimed that the decision to suspend them following the detection of financial irregularities was in breach of fair procedures and of their rights. The Supreme Court held that where suspension constitutes a disciplinary sanction, the principles of natural justice should be considered, before a decision is made to suspend an employee. However, when an employee is suspended pending an enquiry into whether disciplinary action should be taken, the principles of natural justice may not apply Other Cases to Consider McLoughlin v Setanta Insurance Services (2011) The company suspended the employee to out an investigation to in accordance with their disciplinary policy, on the grounds of her “alleged role in the misrepresentation of the true position of the defendant’s outstanding claims reserves and underwriting results for the 2009/2010 financial year end to the Board of the Maltese sister company” among other matters. The employee claimed that this was simply an attempt by the company to dismiss her for gross misconduct and avoid paying her any notice payments. The matter was referred to the High Court to rescind the suspension and grant an injunction. The court refused to grant an injunction because suspension was provided for in the disciplinary policy and was a holding one rather than punitive. The High Court noted that an employer may suspend on pay but that such suspension should only occur in exceptional circumstances (i.e. gross misconduct scenarios). Duffy -v- Hugh McAvoy T/A ‘Talk To Me’ (UD 1048/2009) A failure to suspend an employee in gross misconduct situations may in fact undermine the gross nature of the employee’s behaviour and render the dismissal unfair. This principle was outlined in the above mentioned case where the employee was awarded €17,000 for unfair dismissal. The employee was effectively accused of theft but the employer allowed the employee to work even though they suspected her of such theft. Click Here for the Full Case Report from Morgan -v-Trinity College Dublin [2003] IEHC 16
