Author: Mike Tremeer
A number of Employment Tribunal and court decisions over recent years have examined the effect of suspending an employee in order to investigate disciplinary allegations. The result is that suspension, which might once have been considered a neutral act necessary to allow an unimpeded investigation and/or to prevent a recurrence of acts of misconduct, has now become a hornet’s nest for litigation and a legal minefield for employers.
In this briefing Mike Tremeer will look at the most recent High Court case in this area, Agoreyo v London Borough of Lambeth, in which the suspension of a primary school teacher following disciplinary allegations made against her was sufficient in itself to give rise to her constructive dismissal and to form the basis for a breach of contract claim against the Borough.
Ms Agoreyo (A) was an experienced primary school teacher who taught a class consisting of five- and six-year-olds. Two of the children demonstrated particularly challenging behaviour. Allegations were made that A had used unreasonable force against one of these children on three occasions – including one incident where it was alleged that A had physically “dragged” the child out of the classroom.
The Head Teacher of the school investigated two of these incidents after they occurred and found that A had used reasonable force. Despite this the Executive Head intervened and informed A that she was suspended. The letter of suspension given to A stated that it was a neutral act and that the purpose of it was to allow an investigation into the incidents to be conducted fairly.
Instead A chose to resign and alleged that the decision to suspend her was a breach of the implied term of trust and confidence. The County Court rejected her claim, finding that Lambeth was “bound” to suspend A in the circumstances given the nature of the allegations. A appealed that decision.
Fosketh J (sitting alone) allowed the appeal and found that the decision to suspend amounted to a breach of trust and confidence. His reasoning was as follows:
In summary, the High Court considered that the decision to suspend was a “knee jerk reaction” and, given the background and the potential impact on A and her career, this breached the implied term of trust and confidence.
The Agoreyo decision reaffirms the position that suspension should never be automatic. The particular circumstances of the case should be considered and employers should give genuine thought to whether suspension is necessary and why. This is especially the case where the nature of the role or allegations made could have serious implications for the employee in terms of reputation or with any regulatory or professional standards body.
Particular care should therefore be taken by employers in the medical and care industries, but also those in financial services, insurance and other regulated fields.
If a decision is made that suspension is justified, the reasons for this should be recorded in the suspension letter given to the employee. Including a statement that suspension “does not constitute a disciplinary sanction and should not be taken as any implication of guilt” will no doubt remain the norm, but is unlikely to offer any significant protection to the employer.
Employers should note the following:
Mike Tremeer, Senior Associate, Fladgate LLP (firstname.lastname@example.org)