Monday, May 29, 2017
As published in the Sunday Business Post on Sunday 28th May 2017.
Very frequently, one will hear about public figures under investigation being asked to “step aside” pending the outcome of the process. It isn’t automatic, but very often figures embroiled in matters of controversy are asked to remove themselves for the duration.
However, what’s often overlooked is the fact that there is no automatic right to ask any employee to step down from their role, even temporarily, and an employer who chooses this course of action needs to proceed very carefully.
This is acutely the case since a decision was handed down by the high court in late 2015. That judgment has made it clear that while the option of suspension (or “stepping aside”) still exists for employers, they need to exert great care when choosing it and an employee is not without rights in those circumstances – far from it, in fact.
“Stepping aside” is in reality a form of suspension – something that is not uncommon in employment law in Ireland. Many employees will have a clause in their employment contracts allowing for their suspension in cases of allegations of misconduct (and, as an aside, a contractual clause allowing for suspension is critical). Many employers believe that the mere existence of this clause is sufficient in and of itself to allow them to place an employee on leave pending an investigation of the misconduct.
However, it’s emphatically not the case that employers have a blank cheque in these situations. The 2015 decision, in particular, makes it clear that a suspension that it tantamount to a disciplinary action in and of itself will be lifted by the courts if necessary. Very often, the mere act of placing an employee on suspension can have severe and detrimental implications for that employee’s reputation. In other words, suspension can amount to a disciplinary course of action all by itself.
This is not allowed. In the 2015 decision, the court did allow that there were certain circumstances in which suspension could be justified. The most obvious of these is where the removal of the individual from the workplace is necessary to allow the investigation to proceed properly – a situation in which an employee might, if allowed to remain in situ, act as an impediment to an investigation is permitted.
As well as that, the court seemed prepared to accept in theory that in certain circumstances, where particularly serious allegations were made, suspension might also be justified, simply because the risk to the employer/its reputation would be too great if the misconduct complained of was repeated. If the misconduct, for example, could cause serious damage to an employer’s reputation if repeated, that may be sufficient to justify suspension.
However, the court appeared to be closing the door to any other kind of suspension, and certainly ruled out suspension without any sound underlying objective reason justifying the decision to ask the employee to “step aside”.
This is generally in accordance with fair procedures here. It is absolutely critical that employers engaging in disciplinary action (or anything resembling it) pay strict observance to administrative fair procedures. Among other things, an employee has the right to know the case against them, to be represented, to challenge their accusers and to appeal the decision. On top of that, employees have a right to remain in their positon unless there are extenuating circumstances – and these are likely to be exceptions rather than the rule.
What all of this means is that there is no automatic right to ask someone to “step aside” or otherwise suspend them. Every case has to be treated individually, and any kind of blanket policy of asking people to step down while an investigation (which could take some time) is in train is unlikely to be allowed by the courts.
Even in circumstances where a suspension is justified, employers should be careful to move the process forward efficiently. A situation in which an employee is left hanging for weeks or months while an investigation moves at a snail’s pace is unlikely to be tolerated either.
All told, Irish employers need to proceed extremely carefully when even contemplating suspending an employee, or asking them to “step aside”. An employee in this position has a wide range of remedies available to them, up to and including an injunction from the high court restraining the employer. These can be costly and difficulty lessons to learn.