Take care when suspending - suspension may not be a neutral act

Take care when suspending - suspension may not be a neutral act

Published:

Author: Esther Wilkins and Jennifer Gibbs

Applies to: England and Wales

The High Court has confirmed that suspension is not necessarily a neutral act.

In the recent case of Agoreyo v London Borough of Lambeth, it was held that the employee's suspension amounted to a fundamental breach of the implied term of trust and confidence. Ms Agoreyo had resigned from her employment following her suspension and successfully claimed damages for breach of contract.

Facts

Simone Agoreyo was a teacher with 15 years' experience. She had previously taught children with special educational needs, but had not been trained to deal with children showing behavioural, emotional and social difficulties. In her large class of 5/6 year olds, two children had severe behavioural difficulties, and often became loud and violent. On two previous occasions, Ms Agoreyo had used reasonable force to restrain these children. She had sought more support from the other staff regarding these children, but a 'support package' had not yet been implemented.

Ms Agoreyo was suspended after it was reported that she had 'manhandled a child in [her] class'. Upon receiving notice of her suspension, Ms Agoreyo resigned. She then bought a claim for damages for breach of contract.

Ms Agoreyo's claim was dismissed in the Central London County Court. She then appealed to the High Court.

The Decision

Allowing the appeal, the High Court held that Ms Agoreyo's suspension constituted a breach of the implied term of trust and confidence which is a fundamental term of any employment contract. Ms Agoreyo had therefore been constructively dismissed by her employer and was entitled to compensation.

The judge highlighted the established principle that suspension should not be an automatic, or 'knee-jerk' reaction, but should be reserved as a last resort when other more proportionate measures are not appropriate.

Ms Agoreyo's status as a teaching professional was significant in finding that her suspension in the circumstances could not be a neutral act as suspension had the automatic consequence of bringing the employee's competence as a professional into question. The fact that suspension can breach the contract of employment in cases where the suspension impacts upon professional reputation had been established in in the 2010 case of Mezey v South West London & St George's Mental Health NHS Trust, in which a doctor's suspension was found to be in breach of contract.

Significant also in the High Court's decision were the following facts:

  • Ms Agoreyo had not been given the chance to rebut the allegations made against her. The decision to suspend had been made without hearing her version of events.
  • Ms Agoreyo had previously had to restrain the two disruptive children in similar circumstances, but these incidents had not led to suspension or warranted disciplinary action.
  • The support she had requested regarding the two disruptive children had not yet been implemented.
  • No alternatives to suspension had been examined.
  • The decision to suspend Ms Agoreyo had been made on the day the suspension letter was written, indicating a possible lack of careful consideration.

Suspension

If an employer suspects an employee of serious misconduct, suspension may be an appropriate step to take but only in circumstances where the employee's presence at work would either jeopardise the fairness of the ensuing investigation or where their presence could pose a potential threat to the business or other employees. Any period of suspension should be kept as short as possible and the employer is under an obligation to keep the suspension under active review.

If there is no right to suspend in the employment contract, suspension may be a breach of the implied right to work and such a clause is therefore recommended. Even with a contractual right to suspend the employer must exercise care to ensure that the suspension does not breach the implied term of trust and confidence.

Best Practice

Suspension should only be used as a last resort, and not as a 'knee-jerk' reaction. To avoid breaches of contract, the employer must act carefully before suspending an employee, and throughout the period of suspension.

The employer must have reasonable grounds for suspension. If this criterion is not met, the employee could cite a breach of contract. Therefore, an employer should collect as much information as possible relating to the conduct that could warrant suspension prior to making a decision on suspension. This, in most cases, should include putting the alleged facts to the employee in question and allowing them to rebut any allegations.

Appropriate alternatives should be considered, such as temporarily moving the employee to another area, having them carry out different duties or work from another location, or from home.

Employers should consider the effect suspension will have on the employee, including any risk of psychiatric illness that may be caused.

A written record setting out why the employee was suspended should be kept. It should show the alternatives explored by the employer and why suspension is the only reasonable option. The period of suspension should be continually reviewed and lifted at the appropriate time.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.