This significant Supreme Court case ‘O’Sullivan V HSE’[1] considered, in May 2023, the question of an employer’s rights to suspend an employees and the procedure involved. The interpretation by the Supreme Court, so recently, is of enormous relevance for both employees and employers who may be dealing with the suspension of employees processes.
[1] [2023] IESC 11
Case Facts
This case involved an obstetrician and gynaecologist who was employed at a Hospital in Kilkenny. The Plaintiff had a well-established career, having worked in several hospitals.
In September 2018, the Plaintiff performed medical procedures on five women. However, he included a ‘feasibility study’ as an additional element to the procedure, which he believed would enhance its effectiveness. This involved inserting a small balloon catheter into the patients’ bodies to measure internal pressure. Unfortunately, the critical issue was that these patients had not given their consent, and the Plaintiff did not seek their approval for the additional procedure. Moreover, the equipment required for this study was purchased personally by him, rather than by the hospital and none of the relevant hospital authorities were informed.
This conduct came to light when it was reported by another member of the hospital staff who was a nurse concerned about cross infection. The matter was then promptly brought to the attention of senior personnel. In response, the hospital sought expert reviews and conducted an open disclosure to the patients involved. The experts determined that the added step in the procedure did not pose any ongoing risk to the patients.
Following these events, the CEO of the hospital initiated a disciplinary procedure. As a part of this process, the Plaintiff was instructed to take administrative leave with pay until the investigation was completed and appropriate actions were determined. The Plaintiff then challenged the CEO’s decisions through a judicial review. He challenged both the decision to suspend, and then the proposed redundancy from his consultant position.
Previous Court’s Rulings
Initially, the High Court ruled that the suspension by the HSE was legal and highlighted the need for an ongoing investigation. This decision was then appealed by the Plaintiff to the Court of Appeal.
Overturning the High Court, the Court of Appeal deemed that the suspension was unlawful, citing a lack of evidence regarding any immediate threat to patients’ health.
The Hospital appealed this outcome to the Supreme Court for final determination.
Final Verdict
The Supreme Court upheld the Health Service Executive CEO’s decision to suspend the consultant obstetrician and gynaecologist who had conducted experiments on patients without their consent.Analysis; what we should take from this case
- The Importance of a contractual suspension clause
In this particular scenario, the consultant’s contract allowed for administrative leave without pay if the CEO identified an “immediate and serious risk to the safety, health, or welfare of patients” and deemed an investigation necessary.
The Supreme Court confirmed that the CEO had indeed fulfilled the contractual requirements by seeking input from others before reaching the decision. Nonetheless, this case underscores the utmost importance of having clear contracts and strictly adhering to them, especially when it comes to suspension, to ensure fairness.
Furthermore, the case highlights that it is imperative for employers to carefully consider the inclusion of broader discretion within employment contracts, specifically concerning suspensions. By incorporating this flexibility, they can effectively leverage suspension as a viable and efficient option across a wider range of situations.
- Make clear the Nature of the Suspension
The nature of the suspension in this case came into question, with concerns raised about whether it was necessary for the investigation or merely punitive in nature. In this case the suspension was deemed necessary for the investigation.
The Court reiterated that it is obvious that a person who is suspended must be informed of the reason for his suspension and that an open ended suspension, particularly one without pay can only be seen as a severe form of punishment.
This is important as if the court determines that the suspension was primarily a punitive measure in response to the allegations, rather than a legitimate aspect of the investigative process, it could indicate a significant failure on the part of the employer to uphold fair procedures and support an employee’s case against them.
Therefore, it is essential to assess the purpose behind a suspension to ensure it aligns with fair procedures, as an employee or employer.
- Suspensions may if improperly applied constitute a breach the Implied Trust and Confidence required in employment contracts
The Supreme Court considered the nature of suspensions and their effect on the implied term of trust and confidence in the employment relationship. Relevant caselaw was examined in this area where suspensions were carried out without relevant screening and the obligations of an employer where such suspensions can be in relation to very serious matters can themselves give rise to actions for breaching the implied trust and confidence that is required to exist between employers and employees.
- Opportunity to appeal suspension.
In this case Dunne J stated that along with being informed of their suspension, employees should also be afforded an opportunity to explain why a suspension is not warranted and appeal its application.
However, the Supreme court does acknowledge here that this may not always be feasible in urgent cases. In these cases, however, the court directs companies to offer an appeal as soon as possible after the suspension begins.
- Ensure Employee Reintegration into the Workplace after Suspension:
In this case, the Supreme Court acknowledged that a suspension can potentially damage an individual’s reputation and hinder their ability to resume work normally.
This ruling sends a clear message to employers that they should make efforts to mitigate such damages wherever feasible. Some measures that employers should consider include:
- Conducting a back-to-work meeting with the employee to discuss the way forward.>
- Keeping the employee informed of any relevant changes that occurred during their absence.
- Providing necessary support and guidance to help the employee reintegrate into the workplace.
- The Court will not interfere with a decision unless it is unreasonable, arbitrary, capricious or one which no reasonable decision maker would have made.
The Court when addressing the decision of the CEO to remove the consultant indicated that the decision was one which was not open to challenge on the grounds that it was unreasonable, arbitrary, capricious or one which no reasonable decision make could have made.
The Court reiterated that the CEO had given detailed considerations in those decisions and his reasons for disagreeing with other experts involved in the process and that he was entitled to do so.
The Court reiterated the test set out in Braganza v BP Shipping Limited [2015] 1 W.L.R.
Conclusion
In summary, the ‘O’Sullivan v HSE’ case offers vital insights for both employers and employees navigating suspension-related scenarios and the factors that Court will consider and the settled logical approach of the Supreme Court.
It highlights the significance of procedural integrity, clear contractual terms, and fair treatment throughout the suspension process, and decision makers setting out a considered logic in making their decisions and recording them on the file.
