One of the more difficult and contentious decisions an employer might need to make in the context of a disciplinary process is whether an accused employee should be placed on suspension pending completion of the process. Employers can often be under considerable pressure to suspend an employee. However, the conventional wisdom in Irish employment law is that decisions to suspend should be exercised carefully and sparingly.
In the recent case of O'Sullivan v HSE, the Supreme Court clarified what employers are required to consider before an employee can be suspended from their employment.
On the facts of this case, the Supreme Court ruled that the HSE ("the Employer") acted lawfully when it suspended Mr O'Sullivan ("the Employee"), following allegations of unauthorised and unapproved patient procedures in 2018.
While all cases are obviously fact specific, this judgment is generally relevant to any employer considering suspending an employee in an alleged misconduct situation.
The Employee in this case was a consultant obstetrician and gynaecologist who carried out a 'feasibility study' on five patients who had attended hospital to undergo hysteroscopy procedures.
The Employee had not informed the hospital authorities of his intention to undertake this 'feasibility study' and had failed to obtain approval from the hospital's ethics committee for the study. The patients were not informed about this 'feasibility study', nor was their informed consent sought. In addition, the equipment used in this procedure had been purchased personally by the Employee.
Once the incidents in September 2018 were reported, the hospital commissioned a number of reports and the Employer subsequently commenced a disciplinary procedure against the Employee. On being informed, the affected patients expressed feelings of violation and alarm.
The Employer also sought an independent expert report from a clinician, which determined that the Employee did not pose an immediate and/or serious risk to patient safety.
Nevertheless, the Employee was subsequently placed on paid suspension in August 2019. This decision, despite the independent report that the Employee did not pose an immediate or serious risk was one of the major issues considered in the litigation.
Court of Appeal decision:
In an earlier decision, the Court of Appeal found that the Employer's decision to suspend the Employee was an entirely flawed conclusion, as the CEO of the Employer did not give any clear indication of his reasons for departing from the expert opinion which concluded that the Employee did not pose an immediate and/or serious risk to patients.
Accordingly, the Court of Appeal overturned the Employer's decision to suspend the Employee. The Court of Appeal also noted that the Employer was under an obligation pursuant to the contract of employment, to regularly review the Employee's suspension.
Supreme Court Decision:
The Court of Appeal's decision was appealed to the Supreme Court which (in a majority decision) ultimately overturned the Court of Appeal.
The Supreme Court noted that the provisions of the Employee's contract which governed the disciplinary procedure provided that, where it appeared to the CEO of the Employer that there may be "an immediate and serious risk to the safety, health or welfare of patients or staff", the Employee may be required to take administrative leave with pay for such time as may reasonably be necessary for the completion of any investigation.
The Supreme Court noted that, despite the expert opinion to the contrary, there was significant evidence available to allow the Employer to form that conclusion and place the Employee on administrative leave.
In this regard, the Supreme Court noted that the standard applicable to the review of decisions to suspend was set out in the English case of Braganza v BP Shipping, as follows:
"[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 went on to note that, in this case, this standard was satisfied by "a comfortable margin" and found that there was significant evidence available to allow the Employer to place the Employee on administrative leave, thereby disagreeing with the conclusion of the Court of Appeal that there was no evidence to justify the CEO's conclusion that there was a serious and immediate risk to patient safety.
Advice for employers:
Employers should ensure that they have express contractual powers to suspend employees and contracts should be drafted simply and clearly in that regard. Interestingly, the Supreme Court described the contractual provisions in the above case as “extremely convoluted”.
Any suspension that is imposed by an employer in a disciplinary situation should only be a holding suspension for the purpose of an investigation and should not be seen as a punitive sanction.
It is also clear from this Supreme Court decision that a level of fair procedures applies to the decision to suspend itself, in its own right. Where such a decision to suspend is being contemplated, the employee must be informed and afforded the opportunity to make representations. While the “full panoply” of fair procedures does not apply to this suspension decision a "basic level of fairness" is required. In very urgent cases this may not be immediately possible and in such cases this opportunity must be given to the employee at the earliest opportunity afterwards.
Whilst this Supreme Court case will be welcomed by employers, a high standard is expected from employers who suspend employees. Decisions to suspend should be taken only in the most serious of situations and should never be a knee-jerk reaction or a matter of course.
Employers are encouraged to obtain legal advice when contemplating any such action.
Written by Barry Walsh, Greta Siskauskaite and Cian Ronan
This document is for general guidance only and not intended as professional advice. Advice should always be taken before acting on any of the issues identified.
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