When disciplinary allegations come to light against an employee, sometimes it becomes necessary for an employer to consider whether they should suspend the employee whilst an investigation is undertaken. As our previous articles (here and here) have stressed, suspending an employee is not something to take lightly and it should never be a ‘knee-jerk’ or automatic reaction to a disciplinary allegation, even where those allegations are of a serious nature.
Employers must consider whether suspension is appropriate and reasonable, and also if there are any other alternatives before suspending, such as whether to temporarily change the employee’s place of work. If these things are not considered, then there is a risk that suspending the employee could be a breach of the implied contractual term of mutual trust and confidence. This could entitle an employee to resign in response to that breach and raise a claim for constructive unfair dismissal. An employee would need 103 weeks’ service to qualify for the right to bring such a claim, but if they do not have this length of service they could still raise a claim for their notice pay in the civil courts or in the Employment Tribunal.
A recent case considered by the High Court (Agoreyo v London Borough of Lambeth (2017)) once again emphasised the importance of employers considering whether suspension is an appropriate response to disciplinary allegations.
Ms Agoreyo was a primary school teacher, and in the class she taught there were two children who exhibited challenging behaviour. Allegations were made against Ms Agoreyo that she had used unreasonable force towards one of these two children on three occasions in November and December 2012. The school immediately suspended Ms Agoreyo, and she resigned in response to that. Ms Agoreyo then challenged the lawfulness of her suspension and said it had been a repudiatory breach of the implied duty of trust and confidence. She did not have enough service to raise a claim for constructive unfair dismissal, so she raised a breach of contract claim in the County Court. Initially, the County Court found that the school were ‘bound’ to suspend her given the school’s duty to protect children. Ms Agoreyo appealed this decision to the High Court.
The High Court found that the County Court had erred in saying that the school were bound to suspend. The judge said that the decision that the school was ‘bound’ to suspend on grounds of its duty to protect children could not stand, given that the stated purpose of the suspension was not to protect children but to ensure a fair investigation. The judge was also critical of the school’s procedures, particularly because there was no evidence of any attempt to ascertain Ms Agoreyo’s version of events prior to taking the decision to suspend (and indeed two of the allegations of her using unreasonable force were found to have no substance to them); there was no evidence of any consideration of alternatives to suspension (and the school’s guidance said this must be considered); and the letter to Ms Agoreyo did not explain why an investigation could not be conducted fairly without the need for suspension. This made it clear that the decision to suspend was a default position rather than a carefully considered decision, and as such was enough to constitute a breach of the implied duty of trust and confidence.
Whilst this decision may seem alarming to employers, it does not mean an employee can never be suspended. However, it does mean that when approaching the question of whether to suspend there should be a careful consideration of the issues. Suspension should be a neutral act, but in reality to an employee (and those around them) it can feel like a decision on their guilt has already been made. That said if there are some very serious issues involved, such as the threat of violence, intimidation of witnesses or extremely serious harm to reputation, then the balance may be tipped in favour of suspending despite the risks inherent in doing so. It is always best to take legal advice before suspending – a quick call to one of our team could save you an expensive claim!
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).