Suspension without pay?

WildRosie

Can an employer legally implement a policy that states if a task is not done, the first offence will result in a one day suspension without pay, second offence two days without pay and third automatic sacking. There is no union. Staff are all there 1 year+. Thanks.

LowKeyReturn

WildRosie wrote: »

Can an employer legally implement a policy that states if a task is not done, the first offence will result in a one day suspension without pay, second offence two days without pay and third automatic sacking. There is no union. Staff are all there 1 year+. Thanks.

Absolutely not. Any sanction would require a hearing. Without going into the argument I've had here a while back, even if we assume the first part of the policy is okay, the sacking element is not and would require a proper hearing, somewhat like a court.

You'd have to have evidence given to you ahead of time, the ability to cross examine witnesses and various other protections. That said, as a sanction, suspension without pay is allowed AFAIK, I'd be interested to find out what the social protection policy on it is though.

Mrs OBumble

Please remember that we cannot give legal advice here - and that what you see is our opinions, not legal advice.

That said, I don't think it's as clear cut as LowKeyReturn does.

Yes, there would have to be an investigation. But I'm not sure that the policy "If X, then the consequence is Y" is wrong. All the investigation would need to show is that X happened, and that you did (or didn't) so it.

Overall, it's a minefield, and you need proper legal advice.

mitosis

OP, what does it say in your work agreement? If pay is performance related, ie you must produce something to get paid then one rule would apply, whereas if you are salaried another would. More detail needed, tbh

WildRosie

Thanks all. I completely understand that advice cannot be given and appreciate your opinions. I don't want to say exactly what the situation is as I fear it would be identifiable but a fair analogy would be that the employer is saying that if the employees do not tidy up their desk at the end of the day, the suspension procedures will kick in.

My own opinion is that the punishment far outweighs the crime and is being used as a scare tactic. I would understand if it was directly related to performance or a safety & health issue but it is not. The employer does not provide the facilities for the employees to complete the task and they must pay out of their own pocket and claim the cost back at the end of the month. And how often do you need to 'tidy your desk' and who determines what is tidy? As I said, I think this is a scare tactic and the procedure may not even be used. I think that if this procedure was used, it could be challenged on the basis that the punishment is not proportional and there should be corrective measures put in place first.

joeguevara

While an investigation is ongoing an employee can never be suspended without pay. Natural justice and innocent until proven guilty would apply.

If an investigation proved that the situation occurred and the employee was given a fair hearing (and also subject to an appeal) then any sanction would have to be fair.

Finally, all sanctions would have to be outlined clearly and transparently prior to the offence (i.e. in an employee handbook) before they can be utilised.

If all that was done correctly, a person could then be suspended without pay.

WildRosie

Thanks. That makes perfect sense. In my opinion this is fairly typical behaviour of a small business lacking in knowledge in the area of employment law. I don't believe these procedures will be invoked, I really think it's a scare tactic. A contract of employment cannot remove an employees legal rights. This business had previously tried to contract out of elements of the Payment of Wages Act. There's no HR department and they could badly do with someone with some HR experience. We'll wait and see. If everyone keeps their desks tidy it won't even arise.

LowKeyReturn

joeguevara wrote: »

While an investigation is ongoing an employee can never be suspended without pay. Natural justice and innocent until proven guilty would apply.

If an investigation proved that the situation occurred and the employee was given a fair hearing (and also subject to an appeal) then any sanction would have to be fair.

Finally, all sanctions would have to be outlined clearly and transparently prior to the offence (i.e. in an employee handbook) before they can be utilised.

If all that was done correctly, a person could then be suspended without pay.

As Mrs O'Bumble has pointed out though an investigation could be swift. I disagree, that it's as simple as stated but it's not far off. Once the investigation is complete suspension is the sanction rather than a waring.

Suspension on full pay is used where an investigation is ongoing.

To underscore what was also said - this is in no way to be treated as legal advice.

WildRosie

Thanks. This isn't in relation to me. A family member mentioned this was happening and I thought the employer were overstepping so just thought I'd ask, mainly for my own interest/see if I was generally on the right track in my thinking. It's a long time since I studied employment law, and it was basic at that. So no worries about anyone using this as advice. I would be the first person to recommend the value of seeking the advice of a professional if needed

Mrs OBumble

joeguevara wrote: »

While an investigation is ongoing an employee can never be suspended without pay. Natural justice and innocent until proven guilty would apply.
...
all sanctions would have to be outlined clearly and transparently prior to the offence (i.e. in an employee handbook) before they can be utilised.

Says who?

In particular the point about sanctions having to be "outlined clearly and transparently" - that means that unless they spell out the sanction before the fact, they cannot take it. Sorry, but there's no way that could be correct, because for suitably serious misbehaviour (properly investigated etc) they need to be able to sanction even if the particular issue wasn't foreseen.

joeguevara

Mrs OBumble wrote: »

Says who?

In particular the point about sanctions having to be "outlined clearly and transparently" - that means that unless they spell out the sanction before the fact, they cannot take it. Sorry, but there's no way that could be correct, because for suitably serious misbehaviour (properly investigated etc) they need to be able to sanction even if the particular issue wasn't foreseen.

Says the rights commissioner, labour court and employment tribunals. If a sanction was used without being explained beforehand, these fora will say natural justice wasn't used. Examples don't have to be given, but a general disciplinary procedure has to be outlined.

For example you couldn't suspend someone without outlining a disciplinary and grievance procedure.

As above I am not saying specific examples have to be given. But a disciplinary and sanction procedure has to be outlined.

joeguevara

LowKeyReturn wrote: »

As Mrs O'Bumble has pointed out though an investigation could be swift. I disagree, that it's as simple as stated but it's not far off. Once the investigation is complete suspension is the sanction rather than a waring.

Suspension on full pay is used where an investigation is ongoing.

To underscore what was also said - this is in no way to be treated as legal advice.

A warning could be the sanction as well

Stheno

I have worked in organisations which outline that failure to adhere to procedure x is considered gross incompetence, and results in sacking, and has happened.

And upheld in the courts.

OP I think you need legal advice. Three warnings work for one type of offence, but can be superceded.

LowKeyReturn

Stheno wrote: »

And upheld in the courts.

Not if they failed to follow fair procedures, which would require a hearing. It's in the code of practice and is about as basic as it gets in employment law cases.

bbam

LowKeyReturn wrote: »

Not if they failed to follow fair procedures, which would require a hearing. It's in the code of practice and is about as basic as it gets in employment law cases.

An employee canbe "summary" dismissed pending an investigation, no pay. the investigation could be completed within the company within a few days. There would be no need for a court involvment.

Case in point.. an amployee was found to have extacy in his posession at work. Admitted same, was summary dismissed by his supervisor pending an investigation which was completed the following day and a letter of termination was issued. No court required.

http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/fair_grounds_for_dismissal.html

Conduct

As a ground for fair dismissal the term conduct covers a very large area of behaviour. There is a need to distinguish between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to instant (summary) dismissal without notice or pay in lieu of notice. Examples of gross misconduct include assault, drunkenness, stealing, bullying or serious breach of your employer's policies and practices. Your contract of employment may contain further information concerning gross misconduct.

joeguevara

bbam wrote: »

An employee canbe "summary" dismissed pending an investigation, no pay. the investigation could be completed within the company within a few days. There would be no need for a court involvment.

Case in point.. an amployee was found to have extacy in his posession at work. Admitted same, was summary dismissed by his supervisor pending an investigation which was completed the following day and a letter of termination was issued. No court required.

http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/fair_grounds_for_dismissal.html

Conduct

As a ground for fair dismissal the term conduct covers a very large area of behaviour. There is a need to distinguish between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to instant (summary) dismissal without notice or pay in lieu of notice. Examples of gross misconduct include assault, drunkenness, stealing, bullying or serious breach of your employer's policies and practices. Your contract of employment may contain further information concerning gross misconduct.

This is illegal, but unfortunately prevalent in a lot of poorly drafted policies. What it should say is "if found guilty of gross misconduct after an investigation, the individual will be dismissed". All sanctions must be appealable. Natural justice exists in this situation. If a person is suspected of gross misconduct they should be suspended with pay, followed by a swift investigation. If found guilty they can be dismissed, however they should be allow to appeal the decision. They do not have to be paid while awaiting the appeal but the length of time to hear the appeal should be fair.

I have seen many companies sanctioned for dismissing an employee without a fair investigation or hearing, even though the employee was guilty of gross misconduct.

Nody

I'm surprised people still talk about specifics of gross misconduct; our HR department had any such reference removed simply because it could be considered to pre-judge a decision by deciding what is and is not gross misconduct and hence not give a fair hearing. Then again our HR department refused to let me fire a person who admitted to piss on our front door during working hours when having a smoke "because it was to far to go to the toilet (lets not talk about health and safety, females in building, toilet being only 500m away etc.) becuse "he might have a medical condition".

bbam

joeguevara wrote: »

This is illegal, but unfortunately prevalent in a lot of poorly drafted policies. What it should say is "if found guilty of gross misconduct after an investigation, the individual will be dismissed". All sanctions must be appealable. Natural justice exists in this situation. If a person is suspected of gross misconduct they should be suspended with pay, followed by a swift investigation. If found guilty they can be dismissed, however they should be allow to appeal the decision. They do not have to be paid while awaiting the appeal but the length of time to hear the appeal should be fair.

I have seen many companies sanctioned for dismissing an employee without a fair investigation or hearing, even though the employee was guilty of gross misconduct.

It's in no way illegal to summary dismiss an employee on the spot, pending an investigation..
http://employmentrightsireland.com/category/unfair-dismissal/

Its foolish to do it unless you can be sure you are able to stand over the decision.. And if its done incorrectly you are open to an unfairdismissal case.

I know of two cases where it was done, very different companies, one employee pushed the appeal with a solicitor but it failed.

One for posession of drugs in the workplace, and one for striking a direct manager who issued a verbal warning for a procedural error on the line.

joeguevara

bbam wrote: »

It's in no way illegal to summary dismiss an employee on the spot, pending an investigation..
http://employmentrightsireland.com/category/unfair-dismissal/

Its foolish to do it unless you can be sure you are able to stand over the decision.. And if its done incorrectly you are open to an unfairdismissal case.

I know of two cases where it was done, very different companies, one employee pushed the appeal with a solicitor but it failed.

One for posession of drugs in the workplace, and one for striking a direct manager who issued a verbal warning for a procedural error on the line.

If you read the article you will notice the following:

The Supreme Court decision in Connolly v McConnell [1983] set out the general requirements in relation to disciplinary hearings.
The decision in this case stated, inter alia, ‘they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him..’

Therefore there is a duty on the employer to

• fully investigate the circumstances of the alleged offence
• carry out this investigation prior to taking any disciplinary action
• give the employee the opportunity to defend himself against the charge
• ensure parity/equality between employer and employee at any hearing.

Then the following:

It is estimated that as much as 80% of employers’ lost unfair dismissal cases are lost because of procedural unfairness.

And finally:

Suspension should be for a limited time only, not indefinite. Generally the employee must be paid while suspended, unless there is a contractual right to suspend without pay.

Therefore, it is illegal to summarily dismiss somebody pending an investigation. They may be suspended (if warranted) with pay (generally). Only in the rarest of circumstances could you be suspended without pay pending an investigation. It would have to be explicitly set out in a contract or employee handbook and it would have to adhere to all tenets of natural justice. Just to be clear, the burden of proof is very high, and in all courts, tribunals and rights commissioner hearings that I have attended, I have never seen it upheld.

In conclusion summary dismissal is NOT the same as suspension.

bbam

joeguevara wrote: »

If you read the article you will notice the following:

The Supreme Court decision in Connolly v McConnell [1983] set out the general requirements in relation to disciplinary hearings.
The decision in this case stated, inter alia, ‘they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him..’

Therefore there is a duty on the employer to

• fully investigate the circumstances of the alleged offence
• carry out this investigation prior to taking any disciplinary action
• give the employee the opportunity to defend himself against the charge
• ensure parity/equality between employer and employee at any hearing.

Then the following:

It is estimated that as much as 80% of employers’ lost unfair dismissal cases are lost because of procedural unfairness.

And finally:

Suspension should be for a limited time only, not indefinite. Generally the employee must be paid while suspended, unless there is a contractual right to suspend without pay.

Therefore, it is illegal to summarily dismiss somebody pending an investigation. They may be suspended (if warranted) with pay (generally). Only in the rarest of circumstances could you be suspended without pay pending an investigation. It would have to be explicitly set out in a contract or employee handbook and it would have to adhere to all tenets of natural justice. Just to be clear, the burden of proof is very high, and in all courts, tribunals and rights commissioner hearings that I have attended, I have never seen it upheld.

In conclusion summary dismissal is NOT the same as suspension.

I didn'd mean to intimate that summary dismissal was the same as suspension, appologies if it seemd like that..

Summary dismissal is not Illegal.
Yes you pointed out to an example of a judgement where the judge gave his opinion that it should not be done. that is not the same thing as something being illegal.

From the link I supplied:

Conduct

Conduct is taken to cover a very large area of behaviour and might be accurately termed misconduct. In this regard there is a very clear need to differentiate between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to summary dismissal without notice or pay in lieu of notice.

Alternatively a series of instances on misconduct may collectively lead to dismissal. In the case of instances of minor misconduct warnings as to future behaviour must be issued.

Again, unless summary dismissal can be justified for gross misconduct, proper procedures and processes must be gone through.

Lastly here's a case from 2013 (rather than 1985) where the EAT upheld a case where the Bank summary dismissed an employee based on "a serious breach of trust"
http://www.rte.ie/news/2013/0130/365353-brendan-beggan-eat/

joeguevara

bbam wrote: »

I didn'd mean to intimate that summary dismissal was the same as suspension, appologies if it seemd like that..

Summary dismissal is not Illegal.
Yes you pointed out to an example of a judgement where the judge gave his opinion that it should not be done. that is not the same thing as something being illegal.

From the link I supplied:

Conduct

Conduct is taken to cover a very large area of behaviour and might be accurately termed misconduct. In this regard there is a very clear need to differentiate between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to summary dismissal without notice or pay in lieu of notice.

Alternatively a series of instances on misconduct may collectively lead to dismissal. In the case of instances of minor misconduct warnings as to future behaviour must be issued.

Again, unless summary dismissal can be justified for gross misconduct, proper procedures and processes must be gone through.

Lastly here's a case from 2013 (rather than 1985) where the EAT upheld a case where the Bank summary dismissed an employee based on "a serious breach of trust"
http://www.rte.ie/news/2013/0130/365353-brendan-beggan-eat/

I still think you have misunderstood summary dismissal (maybe we are at crossed wires). Summary dismissal is when you dismiss somebody without having to give them their notice period or pay their notice period. It is not firing somebody on the spot. There would still have to be an investigation to make a judgment of somebody being guilty. While the investigation was on-going and while the hearing was on-going the person would still be entitled to pay.

Finally, the case you quoted never mentioned that the person was fired on the spot.

bbam

joeguevara wrote: »

I still think you have misunderstood summary dismissal (maybe we are at crossed wires). Summary dismissal is when you dismiss somebody without having to give them their notice period or pay their notice period. It is not firing somebody on the spot. There would still have to be an investigation to make a judgment of somebody being guilty. While the investigation was on-going and while the hearing was on-going the person would still be entitled to pay.

Finally, the case you quoted never mentioned that the person was fired on the spot.

The case I quoted showed that summary dismissal is not illegal and infact recognised by the EAT and upheld if done correctly.

My understanding, and the cases I've experience of, is that employees being summary dismissed were always to leave the employment premises immediatly and contacted to return to partake in the investigation.

Do you mean that the employee remains on until after the investigation and then is dismissed post the investigation - with no notice period being given nor paid for? That would be different to what I've seen happen, I must research further.

joeguevara

bbam wrote: »

The case I quoted showed that summary dismissal is not illegal and infact recognised by the EAT and upheld if done correctly.

My understanding, and the cases I've experience of, is that employees being summary dismissed were always to leave the employment premises immediatly and contacted to return to partake in the investigation.

Do you mean that the employee remains on until after the investigation and then is dismissed post the investigation - with no notice period being given nor paid for? That would be different to what I've seen happen, I must research further.

No, for serious cases where gross misconduct is alleged, the employee would be suspended immediately until an investigation and a hearing. They would be paid until the outcome of investigation and hearing. If found guilty they would be dismissed summarily. The investigations are fairly swift and the hearing would be also. If dismissed summarily they are not entitled to any notice period.

For instances where they were being dismissed but not summarily they would be entitled to notice period (or at least paid their notice). These would be for dismissals other than gross misconduct.

bbam

joeguevara wrote: »

No, for serious cases where gross misconduct is alleged, the employee would be suspended immediately until an investigation and a hearing. They would be paid until the outcome of investigation and hearing. If found guilty they would be dismissed summarily. The investigations are fairly swift and the hearing would be also. If dismissed summarily they are not entitled to any notice period.

For instances where they were being dismissed but not summarily they would be entitled to notice period (or at least paid their notice). These would be for dismissals other than gross misconduct.

OK..
My training would have been otherwise and in two cases I saw paperwork where the employee were summary dismissed on the spot, pending investigation.. both upheld at investigation and one appealed externally was also upheld.

But.. I take your point and it maks sense..
Thanks.