In a recent decision, the Labour Court upheld the dismissal of an employee after a 7 year suspension in circumstances where there were substantial grounds to justify the dismissal.

Background

The employee was employed as a social care worker in a hospital in 2001. Following complaints made by her line manager and two others, she was asked to participate in a review of her social work cases in 2007. The review concluded that she was not competent to undertake the duties to which she was assigned. However, due to her refusal to participate in the review, a further independent panel review process was carried out. The panel concluded that her work practice did not demonstrate the required competence or standards for a professionally qualified social care worker within a hospital setting and that this could not be resolved by short-term training or development. She was subsequently suspended with pay in July 2007 and remained suspended until she was dismissed in 2015.

The independent panel review took place between 2007 and 2010. The panel reviewed over 60 of the employee’s case records. By report in 2010 the panel concluded that she did not demonstrate the requisite competence for her role. A Stage 4 Disciplinary Investigation into her competence began in 2013. The employee partook in the process but, on the advice of her solicitors, declined to attend for further interview in 2014. The disciplinary hearing held that she posed a “serious risk to vulnerable patients in an acute medical setting”. This hearing was followed by a letter informing the employee of her dismissal. 

The employee appealed this decision to the HSE Dismissals Appeal Committee in 2015 and to a further appeal board as provided for in the hospital’s disciplinary procedure. She subsequently lodged a claim with the Workplace Relations Commission where her dismissal was upheld. A Labour Court appeal hearing took place in September 2017. 

Labour Court Decision

The Labour Court looked at whether the hospital was reasonable in its belief that the employee was not competent to carry out her role as a social worker. The Labour Court noted that had the employee participated in the initial review and engaged in remedial action, that less serious action could have been taken. The Labour Court was satisfied that an “in depth investigation” into her performance was conducted “without pre-judgment or bias” and the results had “yielded serious concerns for the respondent which it was compelled to act upon”.

The Labour Court referred to the excessive delays in the process, leading to a suspension period of over 7 years. Whilst this delay was unsatisfactory, it noted that a substantial element of this delay was due to the employee’s refusal to participate in earlier reviews of her work and her “constant objections to certain aspects of the investigation”. The employee had also instituted proceedings before the High Court seeking to restrain the investigation. 

Comment

This case highlights the importance of exercising caution in suspending employees as part of the investigation process. In the words of Mr Justice Noonan in the High Court case of Bank of Ireland v Reilly, “even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending full investigation of the conduct in question”.

Although the lengthy suspension here was permissible, the Labour Court was wary of this and stated that the situation should have been dealt with in a more “expeditious manner”.

The four reasons set out by Mr Justice Noonan in Reilly for justifying a suspension should be borne in mind by employers prior to deciding to impose a suspension: (i) to prevent repetition of the conduct complained of; (ii) to prevent interference with evidence; (iii) to protect persons at risk from such conduct; or (iv) to protect the employer’s own business and reputation. 

For further information please contact Catherine O’Flynn in our Employment and Benefits Department.

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