With the revelations about Ryan Tubridy’s earnings and the Suspension of Dee Forbes the Director General, who has now resigned her role with immediate effect, the recent High Court case of Enoch Burke and the Board of Management of Wilson’s Hospital School alleging unlawful suspension, and the case being taken by four Limerick gardai who claim that their continuing suspensions over ‘squaring’ penalty points are unlawful, suspension is a highly topical issue this month.
The landscape around suspension has changed in recent years, and continues to change.
Cases such as The Governor of the Bank of Ireland v Reilly and Smith v RSA highlighted the necessity for employers to follow strict procedures when suspending an employee pending an investigation into alleged misconduct.
The recent above cases show the increased likelihood of a High Court challenge, and significant reputational concerns as well as cost and management time that it can create.
Thus, great care and consideration should be given to suspension.
Suspension is an extremely serious measure to take which has the potential to cause significant damage to an employee’s reputation. Even where the contract of employment and the employee handbook provide for suspension, it is still a significant step to take.
Suspension must be paid and must be necessary as a holding / precautionary suspension pending a full investigation of the outcome.
The holding suspension should be considered carefully and may be justified if seen as necessary to:
- Prevent loss of or interference with evidence
- Prevent a repetition of the conduct being complained about
- Protect people who may be at risk from the conduct complained of
- Protect the reputation or business of the employer.
- It must be designed to facilitate the investigation.
Perhaps the Smith v RSA case came into focus in the past few days in RTE, as in the Smith case the employees suspension was announced on RTE news with apparently only a few minutes notice to the employee and this was a significant factor in his case.
Suspension therefore must be preceded by consideration of what alternative could be taken to suspension.
Preliminary Fact-Finding – An Alternative to a Full Investigation?
With the revelations about Ryan Tubridy’s earnings and the Suspension of Dee Forbes the Director General, pending an investigation into the matter, (Ms Forbes has now resigned her role with immediate effect), it brings into focus the issues of suspension and investigations.
But do employers sometimes jump into full blown investigations to quickly?
Investigations are expensive and time-consuming. They require expertise in conducting the investigation, and in the procedures to follow. Workplace investigations has become a specialist area.
One of the most useful things an employer can do is a Preliminary Fact-Finding.
This can help gather evidence in a more efficient way such that the employer doesn’t need to yet start a full blown investigation but can gather sufficient evidence to determine if a full investigation is required.
It can usually be undertaken internally, and quickly. It should not require extensive resources and time. The outputs should determine if a full investigation is required. This of course should be conducted by another party.
Under the rules of natural justice, the person who has conducted this preliminary fact-finding should not be involved in any HR process which follows after this stage. There must be a clear separation between the people who are involved in every stage in a HR process which could lead to an investigation, suspension, or a disciplinary process.
Workplace Investigation Process & the Skills of Investigators
Workplace investigations are not the norm in most organisations, but sometimes these employers are faced with the need to conduct an investigation.
Retailers will know that where there is stock and cash, there is temptation, and the need to conduct security checks and indeed workplace investigations will arise perhaps all too frequently.
But everyone is prone to temptation and indeed to acting or behaving badly. It might involve theft, inaccurately recoding timesheets, false expenses claims, claiming overtime when overtime wasn’t being done, conducting work for another party on the employers time and/or equipment, running a side business in contravention of the contract of employment, divulging confidential information, sexual misconduct, drugs found in a locker, drug dealing on the employer’s premises, and many more things.
All this requires an investigation to establish the facts.
Did the matter being investigated occur or not? Did the behaviour being investigated occur or not?
A Terms of Reference must be established for the investigation. An independent investigator, internal or external, should be selected with the skills to conduct a fair and impartial investigation. They must follow HR procedure, and the rules of natural justice, and have the skills to gather and analyse the evidence, assess the credibility of the interviewees, and on the basis of the evidence and on the balance of probability, determine their findings for each of the allegations being examined in a non-biased way.
The investigator also has to have the skills to deal with obstacles, legal argument, clarifications, fair process in legal and HR terms, and sometimes challenging interviewees and representatives.
Another requirement is to be kind to / empathetic towards all interviewees, most of whom will not relish being part of an investigation process, and probably have never been in in such a process before and may never be again. It is an extremely stressful time for all involved.