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Employee suspensions lasting more than a decade ‘extraordinarily rare', say lawyers
The paid suspension of an employee lasting more than a decade is 'extraordinarily rare' but can indicate the seriousness of alleged wrongdoing, according to people working in employment law.
The Irish Times reported on Monday that two
Health Service Executive
employees have been suspended with pay or have been on administrative leave for 11 years.
Generally, in employment, suspensions are a precautionary measure during a workplace investigation into alleged misconduct. They can last for months if not years in some rare circumstances. However, one breaching two years is considered unusual, so how could a suspension last 11 years?
Although employers are now encouraged to avoid suspensions where possible due to the potential reputational damage suffered by the off-work employee, they are sometimes necessary, particularly where safety concerns are at play, according to Alan Eustace, an assistant professor of private law at Trinity College Dublin.
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Allegations at the more serious end of the scale may require a 'more robust procedure' that can result in lengthy suspensions, he said.
Dr Eustace, who has a particular interest in employment law, said suspensions of employees subject to allegations of misconduct can often be necessary if their presence is deemed to be 'potentially dangerous'.
'In general, it's quite rare to find people on very lengthy suspensions, unless there's been an extremely serious allegation made against them, and the investigation into that case is extremely complicated,' he said.
While all employees have a right to fair procedure, through thorough and fair investigations of alleged misconduct, this procedure can be made more complex in the public sector where collective agreements can see procedures vary between roles.
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Two HSE staff suspended with pay or on administrative leave for 11 years
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On the other hand, employees can take legal action to halt investigations. If the employer in question is found to be proceeding incorrectly or unfairly, they can be ordered to restart the investigation.
Sick leave, potentially due to stress as a result of the investigation, can also result in the process being paused entirely until they are well enough to engage again, he said.
While suspending an employee can be costly, it can end up 'cheaper than sacking them unfairly and being sued for that later on', Dr Eustace said.
Due to its potential reputational damage to the employee in question, suspension, even with pay, has become 'much harder to do', according to Anne O'Connell, principal of employment law firm AOC Solicitors.
Historically, there was little preventing employers from suspending employees during investigations in the past, once the employee was paid. However, in the last decade or so, more stringent steps have been required to do so.
A botched or rushed investigation could result in costly legal proceedings down the line, she said, and an investigation must run its course before any disciplinary action, including dismissal.
'You can't just fire somebody before a full investigation is complete, they have a right to fair procedures,' she said, stressing that the outcome of investigations may not warrant dismissal and any allegations could be deemed unfounded.
Unforeseen events, such as relevant court proceedings, can delay investigations, she said.
Regardless, '11 years is very rare – extraordinarily rare', she said.
