Employers can be tempted to jump to suspend employees who face allegations of misconduct. A suspension letter will often remind the employee that “suspension is not a disciplinary sanction” but it is a “neutral act”.
Suspension is not typically considered to be a disciplinary sanction. However, case law has established that neither is it a neutral act, as it necessarily leads to a change in position (from one where the employee is in work, to one where they are not in work). There also may be reputational consequences for an employee who is suspended, as their colleagues are bound to speculate about their whereabouts.
In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a “knee-jerk” reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence. Miss Agoreyo, a teacher, was suspended following allegations that she had used excessive force when dealing with two children with behavioral difficulties. Miss Agoreyo had previously asked for support with these children, and only a few days before her suspension she had been given an additional teaching assistant for this purpose. That support was still bedding in. At the time of her suspension, two of the three allegations against Miss Agoreyo had already been investigated, and it had been decided that no disciplinary action would be taken against her in relation to those allegations. In addition, importantly, the suspension letter did not give any indication that consideration had been given as to whether suspension was appropriate in the situation.
Miss Agoreyo resigned and claimed damages for breach of contract in the Central London County Court. At first instance, the Judge decided that it was reasonable for her employer to suspend in the context of the allegations against her and the protection of children. However, on appeal to the High Court, the Judge held that no thought had been given (at first instance) as to whether suspension was necessary. He concluded that in the circumstances suspension may not have been necessary and that there were very strong reasons on the evidence presented at first instance to conclude that Miss Agoreyo’s “resignation” amounted to constructive dismissal. The appeal was allowed.
This decision is a warning to employers that there may be adverse consequences if they suspend as an automatic reaction to allegations of misconduct. Before reaching the decision to suspend the employer should consider:
- is the alleged misconduct sufficiently serious to warrant suspension? Suspension should usually only be used in cases where the alleged misconduct may lead to dismissal; and/or
- is there a significant risk that, if the employee were to remain in work, they may interfere with the investigation or attempt to influence witnesses?
The suspension letter should, among other things, explain why suspension is necessary, including an explanation as to why a fair investigation could not be carried out whilst the employee remained in work (if applicable).
