What do employers need to consider before suspending an employee?

Suspending an employee in response to allegations of misconduct can impact on the subsequent disciplinary process and result in claims for breach of contract and/or constructive dismissal.

The Court of Appeal recently confirmed in The Mayor and Burgesses of the London Borough of Lambeth v Agoreyo that employers must have “reasonable and proper” cause for suspending an employee, so as not to breach the implied term of trust and confidence.

The Agoreyo case concerned a primary school teacher who was suspended in response to allegations that she had used unreasonable force towards two children. On being informed that she was suspended, she resigned and brought a claim for breach of contract, alleging that the suspension was a breach of the implied term of trust and confidence. The Court of Appeal held that when assessing whether there has been such a breach, the test to be applied is whether the employer had reasonable and proper cause for its actions.

This decision cleared up the confusion caused by an earlier High Court judgment, which suggested that suspension must be ‘reasonable and/or necessary’, with the Court of Appeal confirming that there is no test of necessity. The Court further commented that the question of whether suspension is a ‘neutral act’ is not relevant or helpful in determining whether there has been a breach of the implied term of trust and confidence.

The Court also confirmed that there may be cases in which suspension is not reasonable where it is used as a knee-jerk reaction, as originally set out in the case of Gogay v Hertfordshire County Council.  Avoiding a so-called knee-jerk reaction is arguably most important when dealing with serious allegations of misconduct, as the potential consequences for the employer can be more serious if its actions are deemed to be unreasonable.

What amounts to reasonable and proper cause?

In the Agoreyo case, complaints had been made by two members of staff in relation to three separate incidents involving two children. The allegations were serious and required to be investigated, and the employer had a duty to protect the children in its care pending an investigation. The employer was accordingly entitled in the circumstances to conclude that it had reasonable and proper cause to suspend.

It is important to note however, that what will amount to reasonable and proper cause will depend on the facts of each particular case. There is unfortunately little statutory guidance available. However, there are a number of general principles that employers should keep in mind when determining whether suspension is appropriate.

What do employers need to consider to decide if suspension is appropriate?

• Is there an explanation for the employee’s conduct? It is best practice to speak with the employee first. This gives the employer a chance to determine whether the employee has an explanation for their conduct that may impact on the decision whether or not to suspend.
• What is the reason for the suspension? Employers often use suspension as a routine response, without considering whether there is actually good reason to suspend. Potential reasonable grounds for suspending an employee include where the employee has threatened violence or damage to property or where it is not possible to investigate if the employee remains at work (such as where they may destroy evidence or attempt to influence witnesses).
• Consideration should always be given as to whether there are alternatives to suspension. If, for example, the reason for suspending an employee is to prevent the employee influencing witnesses or destroying evidence, the employer should consider whether this can be achieved by other means. Can the employee undertake other duties or work elsewhere whilst the investigation is carried out? Thought should always be given as to whether suspension can be avoided. 
• Finally, it is important to apply a suspension policy consistently so as to avoid allegations of discrimination. If an employer is faced with two employees accused of the same misconduct but only suspends one of them, the employer must be satisfied that it has a good reason for the difference in treatment.

Communication

An employee should be informed verbally, as soon as possible, that they are being suspended and the reasons for the suspension. This should always be followed up and recorded in writing.

A letter of suspension should:

• Set out in detail the reasons for the suspension and the anticipated length of suspension;
• Explain the employee’s rights and obligations during the suspension;
• State that the employment contract continues but that the employee is not to report to work and must not contact colleagues or clients; and
• Notify the employee of a point of contact during the suspension.

It should also be made clear that the suspension is temporary and not a disciplinary sanction or an assumption of guilt. Note however that describing the suspension as a neutral act is unlikely to assist in assessing whether there is reasonable and proper cause to suspend.

During suspension

The period of suspension should ordinarily be:

• On full pay;
• As brief as possible, and
• Kept under regular review.

If, for example, an employer decides to suspend someone in order to prevent interference with witnesses or evidence, then once witness statements have been taken and evidence-gathering is complete, it may then be appropriate to lift the suspension. Employers are likely to find themselves in trouble if they allow a period of suspension to continue for longer than is necessary.

Conclusion

Employers should use suspension with caution to avoid claims for breach of contract and constructive unfair dismissal or impacting on the subsequent disciplinary process. By applying these principles to each individual case, employers should be able to satisfy themselves as to whether or not suspension is appropriate.