In this piece we will consider the HR practise of suspending an employee penning a disciplinary hearing. In essence, in suspected cases of gross misconduct, an employer ought to suspend an employee on pay while the employer conducts an investigation into the matters of concern. But what are the rules surrounding suspension and what should an employer keep an eye out for? In addition, why should an employer suspend an employee pending the disciplinary hearing so that the employee ends up sitting at home on full pay while the matter is sorted out?
Suspension…
The general rule is that if an employee is suspected of gross misconduct then they should be suspended with pay as soon as possible. There is a strong and valid reason for doing this as the Employment Appeals Tribunal have taken the stance that allowing the employee to continue to work, while serious gross misconduct allegations are being investigated, will undermine the “gross” nature of the employee’s actions. Essentially, if an employer suspects an employee of gross misconduct then the employer is going to want to dismiss that employee if the investigation process proves that the employee did in fact commit the misconduct in question. The reason for dismissing the employee is because the employer simply doesn’t trust the employee anymore. Therefore, if you suspected a till-operator of stealing money from a till, for example, and you did not suspend the employee pending the investigation, then how can you argue that you don’t trust this employee anymore if you allow them to continue working on the tills up until the disciplinary hearing? The EAT in similar circumstances regarding theft stated in the case of Employee -v- Employer (UD 1048/2009) that “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 failure, to suspend the employee directly contributed to an award of €17000 for unfair dismissal.
It is important, however, that the employer makes the employee well aware that the decision to suspend them is a precautionary measure, as opposed to a punitive measure, and that suspension will only last until such time as the investigation process has concluded and the employer is in a position to make a decision.
With Pay…
As mentioned above, the general rule is that if an employee is suspected of gross misconduct then they should be suspended with pay as soon as possible. Many employers have great difficulty in accepting the “on pay” element on the basis that the employee they suspect of committing serious gross misconduct is going to end up with a sort of paid holiday while they await the actual disciplinary hearing. However, it is important for employers to bear in mind that suspension is a precautionary measure while the employee’s guilt is being investigated. If the employer were to suspend without pay then in effect the employee is being punished financially even though the investigation process has not yet concluded. Accordingly, the employee should still receive all terms and conditions as normal until such time as the matter has been concluded and the employer is in a position to issue a disciplinary outcome.
Suspension Without Pay…
Suspension without pay is something that employers should only consider as a disciplinary outcome and it should not be used in the same manner as has been outlined above. In essence, an employer may consider conducting the disciplinary hearing and if they feel the employee is guilty of misconduct then they may consider the option of unpaid suspension as a disciplinary outcome. However, this is not an advisable outcome as disciplinary outcomes are intended to be “corrective” and “not punitive”. To suspend without pay is simply a punishment and does not demonstrate any effort from the employer to correct the employee’s behaviour and show them where they went wrong and what they may do in future to improve their behaviour. Furthermore, you would not normally be permitted to suspend without pay and issue a warning as well as this would be an excessive punishment. Thus, by suspending without pay the employee will be no further through the disciplinary warning process and will only serve to prolong then tenure of a troublesome employee.
A Recent Case on Suspension
The recent High Court decision of McLoughlin -v- Setanta Insurance Services [2011] IEHC 410 considered the issues of suspension at the beginning of a disciplinary process and the fairness of that decision to suspend. The employee was seeking an injunction ordering the employer to take her off suspension as she deemed the decision to suspend her to be unfair and in breach of fair procedures. This case, therefore, provides excellent guidance to employers on how to avoid certain pit-falls when suspending an employee.
In this case, the employee became concerned with the manner in which she was being treated in her role as general manager with Setanta Insurance Services Ltd. She had gone out on certified sick leave, due to a ‘stress related illness’ and she wished to have her concerns addressed through a grievance procedure. The employer did not take any action on the grievance but instead instructed that the employee attended a company doctor to evaluate her illness. Around this time the employee became aware of a rumour that the employer intended to dismiss her for gross misconduct. Although this rumour was going around, the employee was completely unaware of what exactly she was supposed to have done as the employer had not brought any allegations to her attention and her solicitor wrote to the company to clarify the matter. The employer responded with a letter which detailed their intention to suspend the employee and conduct an investigation ‘in accordance with its Disciplinary Procedures.’ It specified that the issues being investigated were in relation to the defendant’s “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”, along with “other matters” concerning the plaintiff’s alleged breach of both the defendant’s policies and procedures and of her fiduciary duties to the defendant. It cited the objective of the investigation as being to ascertain the relevant facts in conjunction with the issues of concern and, further to the submission of an investigation report to the Board of the defendant, establish if there were sufficient grounds to necessitate the invocation of a formal disciplinary hearing.
In her pleadings to the Court, the employee argued that the suspension letter was simply a ‘dressed up attempt’ by the employer to dismiss her on the grounds of gross misconduct and in the process avoid the liability of paying her any notice payments. The Court then considered the employers submission and in doing so noted that the issues at hand were unquestionably of significant importance to the company. However, the Court went on to state that it read more like the employer had already reached a determination of guilt against the employee rather than an outline as to why they felt it necessary to bring her through the disciplinary process.
In the end the High Court broke the request for an injunction into two categories - 1) rescinding her suspension and 2) the intervention of the Court at the investigation stage. In respect of her suspension the High Court noted that the Company had reserved the right to suspend in their Disciplinary Procedures and concluded that the suspension was a “holding” one and not “punitive” and therefore refused to grant an injunction as long the process was concluded “as soon as reasonably practicable.” The Court however did decide to intervene on then investigation and grant this injunction as it was clear that the employer had already formed a preconceived verdict as it had been stated that the conduct of the plaintiff justified her dismissal.
Conclusion
The information discussed above, in addition to the High court case discussed, allows us to identify a number of key principles that an employer should take into account when faced with potential gross misconduct.
- The employee must be made aware of the issues that are being investigated against them
- The investigation should be carried out only to establish the facts and ascertain if formal disciplinary action should be taken; do not form a conclusion as to an employee’s guilt or innocence prior to the disciplinary being held.
- The employer should reserve the right to suspend in their handbook as otherwise a suspension may be deemed unfair
- The investigation and disciplinary procedure should be compliant with the guidelines laid out in the Company’s own Disciplinary Procedure. Carry out procedures in conjunction with the processes laid out in Employee Handbook as much as possible
- Suspensions cannot indefinite or for protracted periods of time and therefore the investigation should be completed as soon as ‘reasonably practicable’
Employers should seek advice from Peninsula Business Services when faced with any potential gross misconduct issue. Please phone the 24 Hour Advice Service on 01 855 5050 and one of our experienced advisors will be happy to assist.
