The plaintiff was employed as a Consultant Obstetrician and Gynaecologist at St. Luke’s General Hospital with an unblemished record. As part of what the plaintiff described as a “feasibility study”, he decided, in furtherance of research, to insert a small balloon catheter into five women during a hysteroscopy procedure. None of the patients were informed that this was being done, nor was their consent sought.

The matter was reported to management and escalated in line with procedures until a letter was ultimately sent to the CEO of the HSE expressing concern that the plaintiff’s conduct may pose an immediate and serious risk to the safety, health and welfare of patients and staff. The relevant disciplinary procedure allowed the CEO to place the plaintiff on administrative leave with pay “for such time as may reasonably be necessary for the completion of any investigation into the conduct of the consultant”.

The plaintiff brought legal proceedings in the High Court seeking to challenge his continued enforced administrative leave and to restrain his dismissal which were dismissed, as was his appeal to the Court of Appeal which was then further appealed to the Supreme Court this year.

The Supreme Court disagreed with the Court of Appeal’s findings that there was insufficient evidence available to the CEO of the HSE which justified his conclusion that the plaintiff presented an “immediate and serious risk” to the safety, health and welfare of patients. 

It was further noted when considering the issue of the delay in suspending the plaintiff, that as the CEO was only requested to review the plaintiff’s conduct on 1 July 2019 and placed him on suspension on 6 August 2019, there was no culpable delay.

The Supreme Court adopted and endorsed the UK Supreme Court test as set out in Braganza v. BP Shipping Ltd [2015] UKSC 17 as the appropriate standard of review applicable to a discretionary contractual decision in an employment relationship.  

On the point of whether the CEO was justified in placing the plaintiff on administrative leave, the Court considered whether the discretion to suspend an employee had been exercised in good faith and whether or not the decision was arbitrary, capricious or irrational. Applying the test to the facts, the Court found that it could not be said that the approach of the CEO was anything other than careful and considered.

The Supreme Court’s decision on the lawfulness of the holding suspension highlights that whether or not a suspension is justified necessitates a case-by-case assessment, with often very fine margins between when a holding suspension is justified and when it is not.

The decision has disproven any suggestion that a holding suspension can be implemented in misconduct cases without ensuring appropriate fair procedures are afforded to the employee whom it is proposed to suspend.