O’Sullivan v HSE: Fair Procedures and Decision-Making in Employee Suspensions

Introduction

The recent case of O’Sullivan v HSE (2023) IESC 11 has produced an interesting judgment centered around the steps that an employer must take to ensure that any decisions made to suspend staff are lawful.

These proceedings concerned a consultant obstetrician and gynaecologist who was placed on administrative leave with pay after being found to have performed experiments on patients without their consent. Upon the CEO of the HSE communicating to Professor O’Sullivan that he would be proposing his removal from employment, the consultant issued judicial review proceedings regarding his suspension and the ongoing disciplinary process was paused.

The most notable aspects of the Supreme Court judgment in this case are those that relate to fair procedures in decision making and to the review of decisions to suspend.

Fair Procedures in Decision Making

Where an employer is considering placing a member of staff on administrative leave, the Supreme Court stated the following in relation to the fair procedures which must be afforded to that employee:

“Where it is clear that a decision to place someone on administrative leave 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.”

However, the Court acknowledged that in cases of “extreme urgency” it might not be possible to satisfy the requirement to facilitate the making of representations before a decision to suspend is taken. In such circumstances, the opportunity to make representations must be offered to the suspended employee as soon as possible following any decision to suspend.

As such, this judgment makes it clear that while fair procedures must be afforded to an employee by an employer considering his/her suspension, placing an employee on administrative leave does not impose the same level of fair procedures as, for example, a full disciplinary hearing.

Review of Decisions to Suspend

Perhaps the most interesting aspect of the Supreme Court’s judgment in this case is the endorsement of the test set out in the English case of Braganza v BP Shipping Ltd (2015) UKSC 17. In that case, it was decided that a decision-maker’s discretion must be limited by the concepts of honesty, good faith and genuineness. Furthermore, decisions that are marked by arbitrariness, capriciousness, perversity or irrationality should be set aside.

These Braganza principles were used by the Supreme Court in this case to review the decision to suspend the consultant. In applying the principles to the facts of the proceedings, the Court ultimately found that the CEO of the HSE was entitled to reach the decision that he did in relation to the suspension.

Conclusion

On foot of this judgment employers should ensure that, except for cases involving extreme urgency, before any decision is taken to suspend an employee, that employee is informed that the employer is considering suspension, of the reasons why and the employee must be allowed to make representations to the employer concerning his/her proposed suspension. In cases of extreme urgency, an employee must be allowed to make representations as soon as possible after any decision to taken to suspend. Furthermore, the Braganza principles should be borne in mind so as to ensure that any decision to suspend, or the exercise of any other contractual discretion by the employer, is not subsequently deemed unlawful.

 

Should any assistance be required in relation to the issues discussed above, please contact Shane Crossan, Managing Partner or Judith Curtin, Partner