This week the Court of Appeal delivered judgment in the well-publicised Enoch Burke case. Most of the media attention focussed not on the Court's decision but on the furore in and outside of the Court when the Gardai were required to remove members of the Burke family from the courtroom. That unedifying spectacle undoubtedly distracted attention from the content of the three considered and interesting judgments handed down by the Court. Our Adrian Twomey highlights one of the key points to note in the case of Board of Management of Wilson's Hospital School v Burke, [2023] IECA 52.
The factual background to the Burke case has been widely reported and need not be reproduced in any detail here. Suffice it to say that:
Mr. Burke was a German and History teacher at the school, having commenced employment in 2018.
On 9 May 2022, the then principal emailed staff asking them to use the pronoun "they" when referring to a student who was transitioning their gender identity.
Mr. Burke took issue with the email and articulated his views both by email to the principal and at a staff meeting.
On 21 June 2022, a religious service was held at the school's chapel. In the course of that service, Mr. Burke interjected. He stated that he would not accept what he referred to as "transgenderism" and he demanded that the principal withdraw her previously emailed instruction.
Mr. Burke was subsequently suspended or placed on "administrative leave" and later dismissed.
He continued to attend at the school during his suspension and after his dismissal.
The school applied for and obtained a High Court injunction restraining him from so attending.
Mr. Burke did not comply with the injunction and was subsequently imprisoned arising from his contempt of court.
He failed in his own application to the High Court for an injunction restraining the school from suspending and dismissing him.
He appealed the various High Court Orders to the Court of Appeal.
A full factual history of the case is set out in the judgment of President Birmingham, the President of the Court of Appeal. Ultimately, the Court of Appeal dismissed Mr. Burke's appeal. In doing so, however, it delivered three judgments, each of which contains detailed and fascinating analyses of aspects of the case. For present purposes, however, we are going to focus on just one issue addressed in the judgments: that of the suspension of employees.
It has been relatively common for some years that employers suspend employees (on full pay) pending internal investigations or disciplinary hearings. That practice was called into question in the High Court case of Bank of Ireland v Reilly, [2015] IEHC 241. In that case, Mr. Justice Noonan stated that:
“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career....
Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question.”
Since that decision in 2015, employers have generally been advised to take extreme care before rushing to suspend employees pending investigations or disciplinary hearings. The Workplace Relations Commission (WRC) has relied on the Reilly case on a number of occasions in its decisions. Mr. Burke sought to rely on the Reilly case when challenging his suspension by the school. He argued that the Reilly case had "clearly established that extreme and exceptional circumstances are required to justify the suspension of an employee."
President Birmingham noted that:
"Suspensions fall into two broad categories. A suspension, with or without pay, can be imposed as a disciplinary sanction. In other cases, a suspension will be in the nature of a holding suspension, designed to allow an opportunity for disciplinary proceedings, or similar, to be brought to a conclusion. For my part, I would entirely accept that either form of suspension would impact significantly on the individual involved."
He went on, however, to find that:
"I do not believe that the decision in Reilly provides the degree of comfort to the appellant that he suggests. The case involved the dismissal as distinct from the suspension of a bank official, though it is the case that, prior to dismissal, there had been a period of suspension. It was in that context that Noonan J. made the remarks he did in relation to suspension. I note that the sentence in the judgment ... states “[i]t [suspension] will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct” (emphasis added). In Reilly, there was no question of repetition where the conduct in question involved circulating what might be described as inappropriate emails in breach of the bank’s email policy. Here, there was every reason to believe that the appellant was intent on conducting himself in the future as he had in the past."
The Court's consideration of the issue of suspending employees was just one of many points addressed in the three judgments, each of which is well worth reading. For the moment, however, it may be a useful takeaway point for employers and HR professionals to note that:
Any form of suspension may impact significantly on the suspended employee;
For that reason, suspension should not be imposed without careful prior consideration;
Suspension will "normally be justified" if it is seen as necessary to prevent a repetition of the conduct complained of.
Those who require advice in relation to employment law matters can contact our Adrian Twomey.