What are the risks of suspending an employee?
Suspending employees whilst disciplinary allegations are investigated is becoming more frequently used by employers, and in many cases that I advise upon suspension is used incorrectly and without proper consideration for the impact and outcome.
In this recent case, a similar situation arose where the employer took the decision, following a ‘knee jerk’ reaction, to suspend an employee, and the result was a successful claim by the employee for breach of contract and damages.
Over several years, through various cases in the Courts and Tribunal the implied term of mutual trust and confidence has developed and it is now recognised that there is this implied term between employers and employees in every employment relationship.
The leading case on this issue from the House of Lords states “The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”.
If an employer breaches the implied term of trust and confidence it will be a fundamental breach of contract entitling the employee to resign and claim damages for breach of contract or constructive unfair dismissal.
Section 93(1) of the Education and Inspections Act 2006 sets out the legal basis for the use of reasonable force by a teacher as follows:
“A person to whom this section applies may use such force as is reasonable in the circumstances for the purpose of preventing a pupil from doing (or continuing to do) any of the following, namely—
(a) committing any offence,
(b) causing personal injury to, or damage to the property of, any person (including the pupil himself), or
(c) prejudicing the maintenance of good order and discipline at the school or among any pupils receiving education at the school, whether during a teaching session or otherwise.”
Ms Agoreyo is a teacher and in November 2012 she started a contract with the London Borough of Lambeth (the ‘Employer’) to work at Glenbrook Primary School in South London. At the time, she started her employment Ms Agoreyo had 15 years teaching experience.
Ms Agoreyo was employed on a fixed term contract for the period 09 November 2012 to 31 August 2013 to teach two year 2 classes.
In the class that Ms Agoreyo was teaching were two children aged 5/6 who were difficult to control. There was some argument from Ms Agoreyo that the children have behavioural, emotional and social difficulties but this was not admitted by the Employer and no findings made on this point by the Court. In any event it was recognised that these two children were the most challenging of all in the class and there were recorded incidents in the ‘Behaviour Book’ and it was noted that there was a ‘fraught/physical relationship’ between the two children.
Three incidents were alleged to have taken place on the 19th November 2012, 3rd and 5th December 2012 when Ms Agoreyo is alleged to have used physical force on the two children.
The Employer suspended Ms Agoreyo on the 14th December 2012. In the letter suspending Ms Agoreyo it stated that ‘suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.’ [This is a commonly used phrase by Employers when suspending.]
Ms Agoreyo resigned on the day of her suspension and made a claim in the County Court for damages for breach of contract. Her claim at the County Court was not successful and she appealed to the High Court.
The High Court reviewed previous decisions on the issue of suspension and noted that whilst many hold the view that suspension is a neutral act from a legal perspective it has been established that it is not a neutral act and suspension does in fact change the status quo and inevitably ‘casts a shadow’ over the employee.
The High Court concluded in this case that the reason for suspension was not the protection of the children but rather it was, as stated in the Employer’s letter, ‘to allow the investigation to be conducted fairly’.
Ms Agoreyo’s appeal was successful and the High Court decided that there had been a breach of the implied term relating to trust and confidence, particularly as Ms Agoreyo’s line manager had already investigated two of the incidents alleged and had decided that no disciplinary action was necessary. The Court also noted that just a few days prior to her suspension Ms Agoreyo was informed that additional support would be provided to her in the classroom and a further induction undertaken because of the problems she had been experiencing and reported with the two particular children.
Points to note
This case helpfully sets out some of the key points about suspending employees and highlights the risks for employers. It also reiterates that suspension is not a neutral act, and if there is no reasonable and proper cause for it, it can constitute conduct by an employer that is likely to destroy or damage the relationship of trust and confidence.
Within the Judgement there are some helpful observations about the Employer’s letter suspending Ms Agoreyo which are useful for employers to consider when suspending employees, they were as follows:
1) the decision to suspend had apparently been taken on the day the letter was written;
2) it does not indicate by whom the decision was made;
3) no reference is made to any consideration having been given to the Appellant’s version of events prior to the decision to suspend having been taken;
4) there is no reference to any consideration having been given to whether any alternative to suspension might exist whilst the initial investigation was carried out;
5) whilst the reason given for the suspension was said to be “to allow the investigation to be conducted fairly”, the letter does not explain why it could not be conducted fairly without the need for suspension.
In conclusion, suspension should not be considered a routine response to the need for an investigation.
Note also that in this case Ms Agoreyo did not make a claim for constructive unfair dismissal as she had been employed for less than two years (required for a claim), and instead she claimed damages for breach of contract.
1) When making decisions about disciplinary issues and investigations consider how you respond and act very carefully, do not have a knee jerk reaction to the issue;
2) Always check what your internal policies, procedures and guidelines state, and if you are in an industry where external guidelines apply ensure you review these as well before making a decision;
3) Seek advice if you are not sure of what to do, you can always have an initial free call with myself or my colleague Miranda – 023 8098 2006, 01983 897003 or 01722 653001.
Following this case I have produced a checklist for employers to use when making a decision whether to suspend or not, if you would like a free copy then please email firstname.lastname@example.org.
Case Name: Agoreyo v London Borough of Lambeth – High Court
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Contact us on: 01983 897003, 0238 982006 or 01722 653001