"I have an employee, who has become increasingly uncooperative and difficult to deal with, has been extremely rude and aggressive towards fellow employees and management and has been acting inappropriately causing some employees to describe his behaviour as bullying. I am worried about having this employee on site while we investigate these allegations. How do I handle it?"

The employer in the above scenario will need to make a decision, as to whether it will suspend the employee (with pay) pending investigation, or whether he will remain on site working whilst an investigation is carried out. 

Suspension of an employee pending investigation (even with pay) is not always necessary or appropriate. The general rule of thumb is that it is only to be applied in grave situations where, for example, there is a threat of violence. Of note is that, in this case, given this employee’s recent behaviour this is a distinct possibility. 

There has been some significant recent guidance from the High Court and the Employment Appeals Tribunal that can be applied to these facts. 

In April 2015, the High Court, in the case of Bank of Ireland v Reilly [2015] IEHC 241, stressed that “the suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable harm to his or her reputation and standing. It is potentially capable of constituting a serious blemish on the employee’s employment record with consequences for his or her future career”.

In this case, Mr Reilly was suspended without notice and eventually dismissed for breach of an email policy relating to circulating inappropriate emails. The High Court in its judgment was very critical of the manner in which Mr Reilly was suspended and ultimately found he had been unfairly dismissed, ordering he be reinstated. The Court’s view that it was not necessary to suspend Mr Reilly in the circumstances of the case and their comments in relation to suspension generally, offer important guidance as to when suspension may be appropriate.

The Bank in this case relied on their disciplinary procedure which contained a provision whereby it was permitted to place an employee on leave pending an investigation for gross misconduct. The Court in examining the decision to suspend Mr Reilly noted that, there are two types of suspension, holding and punitive. 

The Court commented that even a holding suspension should not be undertaken lightly and only after full consideration of the necessity for it. The Court noted some examples of circumstances that might justify suspension, such as, if it were necessary in order to prevent a repetition of the conduct complained of, or to protect the employer’s own business or reputation.

In this case, the Court was of the view that insufficient information had been furnished to Mr Reilly prior to him being suspended. In particular, the Court was critical of the fact that other employees who had also been sending the same emails as Mr Reilly were not also suspended. There was therefore a suggestion that the bank had already pre-judged the situation pertaining to Mr Reilly prior to concluding the disciplinary process. 

Importantly, the Court commented that, it was not clear how suspension was necessary in the circumstances, as Mr Reilly’s mailbox was frozen, no complaints had been made about Mr Reilly and recurrence was unlikely. In its analysis, the Court stated that suspension should be seen as “a measure designed to facilitate the proper conduct of an investigation and any consequent disciplinary process” and “ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question.”

The Employment Appeals Tribunal case of Philip Smith v Royal Sun Alliance UD1673/2013 also dealt with the issue of suspension. The facts of this case were that Mr Smith, former Chief Executive Officer of Royal Sun Alliance (RSA) was suspended on the national RTE 6 o’clock news for alleged financial irregularities. He was given only a few moments notice of the suspension. 

The Tribunal was satisfied that from a very early stage in the investigation, Mr Smith’s fate was determined by RSA, as evidenced by the public nature of the suspension and by the manner in which certain allegations were put to Mr Smith during the investigation and disciplinary process. Similar to the Reilly case, the Tribunal was not satisfied that it was necessary to suspend Mr Smith, when all “of the possible risks were covered”. By this the Tribunal observed that, Mr Smith’s licence had been suspended and he had been told to stay away from the office, therefore he “couldn’t interfere with any evidence, investigation or individual as he was staying away from the office”.

In considering the issue, the Tribunal cited with approval the Reilly case and noted that in this case “suspending the claimant on national television was the equivalent of taking a sledge hammer to his reputation, to his prospects of ever securing employment in this industry again in Ireland, in Europe and very possibly beyond and it sealed his fate with the respondent. There was no going back from that point. Even if the investigation turned up nothing, there was no way in which the respondent could have kept the claimant on in employment.”

The Tribunal held that to suspend Mr Smith in this very public and damaging way, was in fact “a dismissal, disguised as a suspension” and noted that “even if the investigation did find fault, even serious fault on the part of the claimant, to destroy his reputation and future employment prospects in such a public way is never acceptable.” 

The Tribunal held Mr Smith had been constructively dismissed and awarded him 1.25 million euro, or just under two years' salary.

It is clear from these two recent cases that employers must tread carefully before making the decision to suspend an employee. It is evident from the above analysis that it is crucial for an employer to be in a position to show that suspension was necessary in the circumstances. Furthermore, where an employee is to be suspended with pay, then he or she must be informed of the reason(s) for, the terms of their suspension and the process that will be followed.