Suspension following disciplinary allegations: neutral act or breach of trust and confidence?

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.

Agoreyo v London Borough of Lambeth

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.

High Court 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:

• the County Court’s finding that the school was “bound” to suspend A suggested that the court accepted that there were no alternatives. However, no express reasons for this were given in the judgment;
• the County Court appeared to rely on the fact that the allegations relating to one of the incidents were raised by a teacher, which was incorrect;
• the court seemingly dismissed the fact that the Head Teacher had investigated and dismissed two of the allegations previously;
• when the allegations were escalated, the police decided that there was no basis for criminal proceedings against A and the Disclosure and Barring Service did not bar A from teaching;
• although Lambeth argued in the proceedings that the reason for suspension was to protect children, the suspension letter did not refer to this. It referred only to the suspension being necessary for a fair investigation to take place – without giving any further explanation; and
• the Executive Head made no attempt to establish A’s version of events in relation to the allegations, nor those of the Head Teacher, before making the decision to suspend A.

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.

Decision to suspend

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.

Comment and best practice

Employers should note the following:

• suspension is unlikely to constitute a neutral act. In the case Mezey v South West London and St George’s Mental Health NHS Trust the Court of Appeal upheld an injunction granted by the High Court which prevented an NHS Trust from suspending a consultant on the basis that suspension changes the status quo from “work” to “no work”, and inevitably casts a shadow over the reputation and future employability of a qualified professional;
• employers must be satisfied that there is reasonable and proper cause for the suspension in order to avoid breaching the term of trust and confidence;
• suspension should not be a routine or automatic response to disciplinary allegations – even (or perhaps particularly) when those allegations have serious potential consequences for the employee or where there is little actual evidence to support the allegations;
• suspension can be a useful strategic tool to facilitate settlement discussion while keeping open the possibility of advancing disciplinary action, employers do, however, need to consider the justification and ensure the available evidence justifies this approach;
• the ACAS Code of Practice dealing with disciplinary and grievance processes (although non-binding) does indicate that suspension may be appropriate in cases where relationships at work have broken down;
• a point of contact should be given to suspended employees (such as a senior manager or member of the HR team) in order to avoid allegations of effective exclusion;
• the period of suspension should be kept as short as possible and reviewed regularly;
• be mindful of the potential for a “right to work” in certain circumstances – for example if being suspended removes the opportunity to earn a material element of remuneration (such as commission), because the individual has a public profile or because it is necessary for the individual to exercise their professional skills regularly and their skills will diminish if they are prevented from doing so.