Should an Employee Be Placed on Paid Suspension Pending Gross Misconduct Allegations?

Last updated: November 2nd, 2023

The requirement for an employer to justify the need to suspend an employee was highlighted in a recent decision by an Adjudication Officer from the Workplace Relations Commission (WRC) in A Customer Agent -v- An Outsourced Contact Centre Company (ADJ-00008083).

The employee, in this case, was placed on paid suspension pending allegations of misselling. In the WRC decision, the Adjudication Officer stated: “I am satisfied the alleged misselling conduct appears to fall within the category of cases that are anticipated and provided for in the respondent’s own Grievance and Disciplinary Procedure and are of the type that Noonan J. was considering in the Bank of Ireland v Reilly case.”

The Adjudication Officer was referring to Mr. Justice Noonan, High Court decision in Bank of Ireland v Reilly. This case was the first case that dealt with the question of whether an employer should or shouldn’t, place an employee on paid suspension pending gross misconduct allegations.

The High Court stated that even a holding suspension on pay during an investigation process is a form of punishment of an employee, and therefore must be justified in every case.

One of the main focuses on The Bank of Ireland case was the unjustified suspension of Mr. Reilly.  The bank investigated five employees in relation to inappropriate emails that were sent and suspended only three, one of which was Mr. Reilly. At the time of the suspension, Mr. Reilly was provided with little detail regarding the reason for his suspension.

The judge in the case Mr. Justice Noonan, stated suspension should only be opposed after “full consideration of the necessity for it pending a full investigation” as suspending an employee can cause “irreparable damage” to an employee’s reputation.

Mr. Justice noted a number of instances where suspension will usually be justified;

  1. To prevent a repetition of the conduct complained of;
  2. To prevent interference with evidence;
  3. To protect individuals at risk from such conduct; or   
  4. To protect the employer’s business and reputation.

In the Bank of Ireland case, the Judge believed it was unlikely that Mr, Reilly would continue to send inappropriate emails during the investigation, therefore the suspension was not justified.  In the more recent case “A Customer Agent -v- An Outsourced Contact Centre Company” the Adjudication Officer was satisfied that misselling fell within the remit of the instances Mr. Justice noted in the High Court decision.

When faced with allegations of gross misconduct, prior to placing an employee on paid suspension, it’s important that employers consider the following;

  1. The need to suspend can be justified, as per the Mr. Justice Noonan High Court decision.
  2. The company’s disciplinary procedures reserve the right to place an employee on paid suspension pending allegations of misconduct.
  3. The requirement to notify the employee of the reason for their suspension and the need to communicate this notification in writing.
  4. The person conducting the investigation is an appropriate, impartial person, and the investigation should be conducted in a timely manner with undue delays.

If you have any questions in relation to paid suspension or disciplinary matters, please contact the advice line on 01 886 0350

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