Alleged Gross Misconduct: To suspend or not to suspend…

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An Unfair Dismissals case recently determined by the High Court gave consideration to the appropriateness of the suspension of a member of staff pending investigation.  The alleged misconduct concerned a breach of the bank’s email policy but the decision to suspend Mr Reilly was made by a regional branch manager who had not seen the offending material.  The bank’s policy specifically provided that an employee could be “placed on special paid leave in order to facilitate the proper conduct of the disciplinary procedures.”  In this case, it was determined that the decision to suspend was flawed.  The court held that ‘even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question’.  The judgment considers the various reasons for which the suspension of an employee will normally be justified:

  • If seen as necessary to prevent a repetition of the conduct complained of;
  • Interference with evidence;
  • Perhaps to protect persons at risk from such conduct;
  • To protect the employer’s own business and reputation where the conduct in question is known by those doing business with the employer;
  • In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

None of these circumstances were deemed to apply in this case.  The lesson here is that employers should not rush to suspend an employee it suspects of gross misconduct.  This case highlights that some examination of the information to hand, by the person making the decision, or the person responsible for the decision, to suspend, must be carried out, giving due consideration to the necessity for suspension

The Governor and Company of the Bank of Ireland v. James Reilly, unreported, Noonan J., 17 April 2015