Worker

Employer

Parties

Worker

Employer

Anonymised Parties

A Worker

A Policing Service

Representatives

Ciaran O'Neill

Employee Relations Bureau

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002049

14/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002070

21/12/2023

The Worker has submitted two complaints, both related to the Worker’s suspension following an incident in 2021. The Worker was exonerated of any wrongdoing and returned to duty in May 2023.

IR - SC – 00002049 concerns the Worker being put on a basic pay for the duration of the period of suspension. The Worker would normally receive an unsociable hours allowance. The Employer has rejected an internal application for his having this pay backdated to him.

 IR - SC – 00002070 concerns the decision to place the Worker on suspension and the alleged failures of the Employer to follow their own procedures and generally act reasonably.

The Worker went to the help of a supervisor who was being assaulted and he assisted in restraining the assailant. Following this incident the assailant lodged a complaint against the Woker and his supervisor and he was almost immediately put on desk duty, that is restricted from dealing with the public.

A few days later the Worker was suspended. In his notice of suspension, he was not given an explicit reason nor was it explained why desk duty was not a sufficient restriction.

This suspension was extended a number of times in what the Worker alleges was a tick box exercise. The extensions did refer to the original incident and an allegation that the Worker used excessive force and then later that he was being prosecuted for this. The Worker was never interviewed except in the context of those criminal proceedings and that interview did not even occur until nearly 6 months into his suspension. A report was compiled after the first suspension but before the first renewal which recommended suspension. The Worker had no input into the report or any opportunity to respond to its contents.  

In January 2022 the Employer conducted a “use of force” review where three experienced and specialist employees reviewed the footage of the incident and did not make any adverse findings regarding the Worker’s use of force. This report was not shared with the Worker nor it seems the person determining the extensions of the suspensions.

The Worker was not notified of any internal vacancies while suspended. This was directly in contradiction of the suspension policy.

The Worker was prosecuted in Court and was exonerated just over 2 years after the suspensions began. After this the Employer closed the disciplinary process and returned him to duty.

The Worker was paid basic pay of circa €52,000 without the allowance, when he returned to work he was on circa €77,000.

Over the course of his suspension the Worker had lost roughly €50,000 in unsociable hours allowance. This also affected his pension.

The Employer’s suspension policy is set out by way of statutory instrument. The Employer has the right to suspend staff where it is deemed appropriate.

The Worker was suspended in line with these rules and on full pay. He no longer worked unsociable hours so payment for those hours is not inappropriate.

They refer to the Labour Court case of Cathal Noonan and An Garda Síochána PWD2348 where the Court found that “It is indisputable that the Suspension Policy, which governed the suspension of the worker and the terms applicable to him while suspended, explicitly states that, while suspended, the worker was entitled to receive a suspension allowance equivalent to 100% of basic pay but would not receive payment in respect of any other allowance for the period of suspension.”

This matter concerned a holding suspension and not a punitive suspension. The Worker was notified of the reason for this suspension. Once criminal charges were contemplated the Employer’s HR policies must pause and this was in deference to the Worker’s rights.  The Employer lifted the suspension as soon as these charges were dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

When the Worker was first suspended, he was not given a reason. He was not offered any interview or opportunity to make any submissions. The cctv footage of the incident, the use of force report and the report outlining the rationale for the suspension were all kept from the Worker. While he was subsequently notified of the reason for suspension no consideration was given to any alternative, such as station transfer or continued desk duty. There is nothing to suggest the repeated extensions were anything other than the rubber-stamping exercise that the Worker alleges, he was not given any opportunity to challenge them or provide submissions regarding them.

The Worker was not notified of any promotional vacancies during the course of his suspension, in contravention of the Employer’s policy.

The Employer is in a unique position in that it was handling both the decision to suspend the Worker and to pursue a criminal case against them. They are alive to the prejudice that HR processes could cause the Worker in defending himself from criminal charges and they generally refer to this as justification for their actions.

This position simply fails to stand up to scrutiny. While there may have been issues if the Employer had tried to compel the Worker to engage in a HR investigation, they were not entitled to simply refuse him any fair procedure in when determining the issue of a lengthy suspension. There was no bar to the Employer allowing the Worker sight of their evidence and reasoning in suspending him nor where they barred from inviting him to state his case before deciding whether or not to suspend him or keep him on suspension. They should have taken both these actions.

I understand the Employer’s position that they have “Chinese walls” when dealing with these matters. However, their internal subdivisions such as the HR Department or the Worker’s immediate superiors are not separate organisations and the Employer is responsible for the actions of all their component parts. The fact is that they had access to information which would have resolved the complaint against the Worker relatively quickly. Instead, he was left languishing on suspension so that the Employer could continue to pursue a criminal case that appears to have fallen apart when it reached open court.

The Worker has referred two specific issues to me which are the issue of his unsociable hours allowance and the Employer’s actions in suspending him.

As the Employer points out whatever the dispute about the Worker’s suspension, he was not actually working unsociable hours during this period. The Noonan case they refer to is a payment of wages act case which is limited to the question of whether the allowance was properly payable in a legal sense, it is not directly applicable. However, I generally agree with their position, a worker is not entitled allowances or overtime which they would have worked but have not worked, even through no fault of their own.

Where a worker is cleared of wrongdoing following a suspension they are not automatically entitled to redress. A suspension can still be fair and proportionate in those circumstances and there might be no reason for compensation. This is not such a case, the Employer acted extremely unfairly towards the Worker over the course of his two-year suspension.  At times they ignored their suspension policy and at other times they applied it in a manner which was totally unreasonable.

I believe it is appropriate that the Employer pay the Worker compensation for breaching his rights to fair procedures in the course of the two-year suspension and the resulting distress caused to the Worker.