Should a Respondent be placed on suspension during an investigation?

We are often asked the question whether a respondent in an investigation (person who allegations are made against) should be placed on suspension with or without pay while an investigation regarding harassment, violence and/or discrimination takes place. Oftentimes we see cases where employers remove respondents from the workplace automatically without considering the type of offence, the severity of the conduct in question and whether alternatives exist.

In our experience, no matter how many confidentiality agreements you get employees to sign as part of the investigation process, gossip and rumours circulate. Rumours, speculations and assumptions of guilt are made, and gossip tend to increase when a respondent is placed on leave. For this reason, serious consideration should be given before deciding to place an employee accused of wrongdoing on a leave.

Some tips to consider in assessing this question include:

• What is the nature of the conduct and/or comments the respondent is accused of? Is it serious allegations of breaches of the Human Rights Code, conduct that could be considered assault or violence? In these cases, a suspension with pay is recommended.
• Is it possible to separate the parties or change the reporting relationships if the accused person is a manager? If this can be done, it is preferable than placing a respondent on leave.
• Is there a risk that the respondent will continue to reprise against the complainant(s)?

In cases where a decision is made to place a respondent on suspension pending the results of the investigation, it is recommended that the respondent is paid. Several court decisions have held that placing an employee on an unpaid suspension during an investigation can amount to a constructive dismissal, particularly in cases where there is no policy or express language in the employment agreement giving the employer the right to do this. In Pierro v. the Hospital for Sick Children, the court provided some well-needed guidance in this area in assessing whether an employer should impose an administrative suspension:

1. the action taken must be necessary to protect legitimate business interests
2. the employer must be guided by good faith and the duty to act fairly
3. the temporary interruption of the employee’s performance of work must be imposed for a relatively short period to the extent possible.
4. The suspension must, other than in exceptional circumstances be with pay.

The hallmark of conducting a legally defensible investigation is about ensuring procedural fairness to all parties in the process, including the respondent. Complainants and respondents should be treated in a fair and even-handed manner. If a respondent is placed on leave without pay during an investigation, they are effectively being punished for allegations that have not yet been proven.

Assessing the nature of the risk and the conduct the respondent is accused of is critical. Sometimes this is a challenging question to assess, and consulting with legal counsel is recommended. If you require assistance on this front, the lawyers at Bernardi are experienced in providing advice regarding all issues pertaining to investigations and will be happy to offer assistance in navigating through this tricky process.