Supreme Court considers the procedures necessary when suspending employees

The Supreme Court last week decided the case of O’Sullivan v HSE [2023] IESC 11, in which it considered the procedures necessitated when suspending persons from employment. While the facts of the case are of particular relevance to hospital consultants employed by the HSE, the judgments merit close scrutiny by any employers considering the serious step of exercising a contractual discretion to suspend someone from their employment.

The facts

The case concerned a consultant obstetrician and gynaecologist who conducted a ‘feasibility study’ (using equipment he had purchased personally) on five women who attended the hospital to undergo hysteroscopy procedures. None of the patients had consented to this part of the procedure, nor had the consultant sought the requisite ethical approval.

The provisions in the consultant’s contract governing the disciplinary procedure were described by the court as “extremely convoluted”. In broad terms,  where it appears to the CEO of the HSE that by reason of any concern of conduct, there may be ‘an immediate and serious risk to the safety, health or welfare of patients’, the consultant may be required to take what is described as ‘administrative leave with pay’ for such time as may reasonably be necessary for the completion of any investigation.

When the events of 4 and 5 September were reported to senior personnel within the hospital, it took a number of steps, which included commissioning expert reviews which did not suggest the consultant presented any ongoing risk to patient safety but did opine that the consultant appeared not to have demonstrated insight or remorse for his actions. It also made an open disclosure to the affected patients who reported feelings of violation and alarm.

The hospital, following these steps, wrote to the CEO of the HSE noting a concern that the consultant’s conduct ‘may pose an immediate and serious risk to the safety, health and welfare of patients and staff’. The CEO then commenced the disciplinary procedure and required the consultant to take administrative leave with pay. The CEO then sought the expert opinion of a clinician (the “Expert Opinion”) which concluded that the expert did not consider the consultant to pose an immediate and/or serious risk to patient safety. Following this, the CEO (not himself a qualified doctor) communicated that he considered the consultant’s behaviour to amount to misconduct and that he intended to propose his removal from office.

Previous judgments and determinations

Noonan J, writing for the Court of Appeal, overturned the decision to suspend the consultant on the basis that there was no evidence available to the CEO that he represented an immediate and serious risk to patients,  but did not interfere with the other decisions, which meant the disciplinary procedures could continue. He held there was an obligation on the CEO under the contract of employment to review the consultant’s suspension periodically as a consequence of the duty of trust and confidence underpinning the employment relationship. The decision to suspend was “an entirely flawed conclusion arrived at in the teeth of the actual evidence” inasmuch as the CEO gave no clear indication of his reasons for departing from the Expert Opinion.

The decision of the Court of Appeal had caused some alarm that the proper working of a suspension might be frustrated by allowing employees to make applications to court whenever an investigation uncovers evidence that is beneficial to the employee. Arguably, it might also require an employer to form a view about evidence being collected before an investigation is complete.

The Supreme Court judgments

The Court accepted that the decision to dismiss was in the nature of a holding suspension (a suspension for the purpose of an investigation, not directly implying any wrongdoing) rather than a punitive one (where suspension is imposed as a sanction for misconduct), but noted that it nevertheless had a definite impact on the individual, possibly affecting their reputation and possibly making it more difficult for them to resume their occupation. The Court adopted and endorsed the following passage from the judgment of Noonan J in Bank of Ireland v Reilly in this respect:

“while the full panoply of fair procedures may not have been engaged at [this stage of holding suspension],…  basic fairness [required] at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.”

This standard was found to be satisfied by ‘a comfortable margin’, as set out further below. Dunne J, in a key passage, stated as follows:

Obviously, a person who is being suspended must be informed of the reason for his suspension… a power of suspension must be viewed as permitting a suspension to continue only for the period of time during which would not be reasonably practicable to hold a full hearing into the matter… a short period of suspension with pay against a clearly defined backdrop of consecutive steps to resolve the disciplinary issue is less likely to warrant the courts’ intervention on the basis that the procedures, or their application, is unfair to the person concerned…

Where it is clear that a decision to [suspend] is being contemplated, that person should be so informed and should be afforded the opportunity to make representations as to why that should not occur. That is no more than fairness requires. That does not mean the “full panoply” of fair procedures… but it is a basic level of fairness that is required…

… in cases of extreme urgency, it may not be possible to take the sort of steps that occurred in this case. However, provided an opportunity is given to someone who has been placed on administrative leave, or suspended, to make representations at the earliest opportunity thereafter… this will suffice.

The Court noted that there was ‘little if any dispute’ about the standard applicable to decisions to dismiss, which is that set out in the English case of Braganza v BP Shipping Limited & anor which decided that

a decision maker’s discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith and genuineness and the need for absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused.

The test, therefore, is not one of fairness or reasonableness in the colloquial sense. In this case, the Court noted that the CEO had set out that he had consulted with a number of people, had regard to all the documentation and the representations made on behalf of the consultant. The court disagreed with the Court of Appeal conclusion that there was no evidence to justify the CEO’s conclusion that there was an immediate and serious risk to patient safety, noting that the contractual language allowed a suspension where “it appears to the CEO” that there may be such a risk. It noted that the CEO had been concerned about the conduct which was so far removed from established norms of clinical study and patient treatment, but in particular the absence of informed consent and the response and lack of awareness of the consultant when challenged. The CEO was, therefore, entitled to reach the ‘careful and considered’ conclusion he did as there was “a wealth of information available” concerning issues of patient safety.

Interestingly, O’Donnell CJ in his concurring judgment noted that “[t]he parties could in theory exclude [the] implication [that a decision to suspend will not be irrational], or indeed, set a higher standard.”

Dissenting judgment

Woulfe J in the Supreme Court parted company with the majority in how the Braganza principles should be applied to the facts. He noted that the requirement for there to be an “immediate and serious” risk to patient safety was, in his view, a strict test with a high bar, and that the perceived seriousness of the consultant’s past conduct could not itself determine the serious level of risk going forward. He doubted whether a risk could be ‘immediate and serious’ where there had only been a single incident by a doctor with an unblemished disciplinary record over a long career and who had indicated he would no longer conduct clinical research at the hospital. He was influenced by the fact also that no risk had materialised for the period of eleven months between the incidents and the suspension during which time the consultant continued to carry on his clinical practice. In these circumstances, he characterised the decision to suspend as “bizarre and irrational”.

Respectfully, the approach adopted by Woulfe J might be criticised for engaging with the detail of the case and arriving at conclusions on the merits, an approach not permitted by the applicable legal test. As O’Donnell CJ noted in his judgment, “the inevitable consequence would appear to be to impose yet one more layer of legalism on a process which, on any view, already requires quite elaborate procedural steps”, making it even more protracted, costly and prone to being derailed by challenge than is already the case.

Concluding remarks

Representations had been sought from the consultant in this case as to the proposal to suspend him and it is clear that this will continue to be expected. Furthermore, Dunne J noted that “it is difficult to disagree with a proposition that if a report or other information came to light that completely changed the underlying basis for the suspension, a reconsideration of the continuation of the suspension might be required” but that the original decision to suspend would remain valid.

The endorsement of the Braganza test by the Court signals a high standard of review will apply to the exercise of a discretionary power to suspend. The test is not whether a court will agree with, or consider fair or reasonable, a decision to suspend; instead, the conduct must be demonstrated to be either dishonest or in bad faith, or not genuine or arbitrary, capricious, perverse or irrational. Braganza sets out principles applicable to decision making in a contractual context generally and may be of wider relevance when employers are exercising any contractual discretion.

While there was no substantial dispute about the facts in this case and an agreement as to the applicable legal test, there remained a sharp disagreement between the judgments. As O’Donnell CJ stated, it is therefore important to be cognisant of the limited jurisdiction and function of the courts in disputes of this nature. Legal advice continues to be strongly advisable where a decision to suspend is being entertained.

It might be ventured that the period of ten months in this case between senior management being notified about concerns, and the decision of the CEO to suspend the consultant would be unlikely to be acceptable outside of the specific (rather convoluted) contractual context here.

In the context of suspensions affecting those in professional roles, ‘while the possibility of a collective groupthink should not be dismissed’, O’Donnell CJ pointed out that the decision maker is entitled to place reliance on expert opinion and where a decision is taken in accordance with and in reliance upon expert advice, it becomes difficult to properly and fairly characterise it as arbitrary, perverse or capricious. While the Court has acknowledged that decision makers can depart from expert advice, the focus on the expert opinions here is somewhat anomalous, as in many cases, and in particular outside of regulated professions, a decision to suspend might be more typically characterised as impressionistic in nature. Subject to the Braganza principles, there is nothing in the judgments to suggest any impropriety in such suspensions.

Also contributed to by David McCauley

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.