What are the dangers of garden leave following an internal investigation?

Posted in : Seamus Says - Employment Law Discussion on 6 July 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

 Q: An employee was asked to attend an investigation meeting, but tendered his resignation before this could start. He was quite militant. During a follow-up meeting, he refused to sign the minutes of the meeting. We accepted it and gave him garden leave for his two weeks' required notice, as per the contract. What are the dangers of this, if any?

Seamus: "If any" is the question, but I don't have a problem with how this process has worked out, subject to, of course, that the company is following its policies and procedures and making sure that it has a contractual right within the contract of employment or the staff handbook to place the employee on garden leave in the first place.

This is a scenario that does happen, and you will get someone that is invited in for an investigation and essentially they will quit the job there and then. And there may be an opportunity for follow-up after that, and you can imagine the circumstances of that being very difficult for the employee and for the employer.

But it talks right here about the refusal to sign minutes. And that's fine. You can't force anyone to sign the minutes. If they don't want to sign them, they don't sign them. But the company would be retaining the minutes as an accurate representation of what has happened.

Scott: You're probably as well writing on the minutes "the employee refused to sign these minutes" as a true record. But we consider them a true record.

Seamus: And it is what it is at the end of the day. You can't take the blood from the stone in that sense. It is what it is. If the employee comes back with comments in terms of the minutes or something, then that can be looked at. And it might even have a point where we've had two sets of minutes, where we've gone into a tribunal case with the employee's minutes and the employer's minutes, you know.

But essentially, I don't have a difficulty. I suppose the employee is frustrated or unhappy in these circumstances. They have resigned and you could be looking at a claim here for constructive dismissal when they have resigned. Maybe they're alleging under these circumstances that the investigation was entirely unwarranted.

So I think it would be a good step for the company to going back to the employee and saying, "Well, here's your copy of the grievance procedure. If you do have an issue, lodge a grievance if you want. That's what it's there for." And at least in that sense, the employer maybe gets some understanding of what the employee's situation is, what their point of view is, and can maybe look to seek to avoid the litigation if it's coming down the tracks at that point. At least it gives the employer a heads-up.

But other than that, I don't have a difficulty. I think that where there's a right to place the employee on garden leave or you have an employee that is militant and an employee that's going to be obstructive or destructive in their notice period, it's sensible and it's prudent for the employer to place them on garden leave.

Scott: It may well be in most cases they'll leave immediately anyway and therefore there's no need to worry about the garden leave they’ve left. And it's the same process. They'll sign anything to just deal with it.

 

This article is correct at 06/07/2018
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Seamus McGranaghan
O'Reilly Stewart Solicitors

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