Employers frequently suspend employees as a “knee- jerk” reaction to investigate allegations which have been raised or circumstances which have arisen.

Generally, however, suspension will only be relevant where there are gross misconduct or serious misconduct allegations which require investigation and an employer will not be able to do so whilst the employee remains in the workplace or there is a risk of damage to property or person. For example, this would be where an employee has been violent and could be violent again, or there is a risk that they could damage evidence or other property of the employer.

The recent ruling in Agoreyo v London Borough of Lambeth highlights the risk of suspending employees without careful consideration of the allegations and the alternatives to suspension. Employees may be able to argue that automatic suspension is a breach of the implied duty of mutual trust and confidence and, therefore, be entitled to claim constructive unfair dismissal or damages for breach of contract. Alternatively, any dismissal by the employer may be deemed unfair as a result.

Facts of the Case

Ms Agoreyo was a teacher who, at the time of the events, had approximately 15 years’ teaching experience.  In December 2012, she was suspended by the school due to allegations that she had used physical force against two pupils in order to make them behave.

Ms Agoreyo was advised, by letter, that the suspension was a “neutral action”, not a disciplinary sanction and was to “allow the investigation to be conducted fairly.”  Ms Agoreyo later resigned and bought a claim for breach of contract at the County Court.

The County Court in the first instance rejected her claim. She therefore appealed the decision to the High Court.

The High Court held:

1. suspension should not be a default option and alternatives should be considered;

2. Ms Agoreyo was not informed who had made the decision to suspend;

3. prior to suspending her, the school should have spoken to her about the allegations and obtained her version of the events;

4. there was no record of the employer considering if there were any alternatives to suspension;

5. the reason given for suspension was to allow the investigation to be conducted fairly but there was no explanation as to why an investigation could not be conducted fairly without the need for suspension; and

6. suspension can never be a “neutral action” where it involves qualified professionals as it “casts a shadow” over the employee’s competence.

The High Court concluded, therefore, that the implied term relating to trust and confidence was breached by the employer. The amount of damages was, however, not decided at this hearing.

This case is unusual as it deals with potential safeguarding issues in a teaching context. However, it serves as a warning to all employers that suspension is not always the right or lawful thing to do in all circumstances. This is particularly the case where it impacts on an employee’s professional reputation or that employee does not pose a risk to the business or others and an investigation can be carried out whilst the employee remains within the workplace.

Employers should, therefore, consider whether suspension is appropriate on a case by case basis, taking into account the particular circumstances.

Reasons to Suspend

As a guide, therefore, the following are circumstances where suspending an employee pending investigation is usually justified:

• there are concerns the employee will destroy or tamper with evidence or witnesses;

• the employee will cause damage to property or person;

• the employee operates in a sensitive environment, e.g. in the finance industry;

• there are concerns the alleged misconduct will continue if the employee remains;

• if the working relationship has broken down; and / or

• there are serious concerns about the employee staying at work e.g. damage to reputation.

Practical Tips

We set out below some practical tips for dealing with the suspension of employees:

1. Carry out a preliminary investigation

Speak to the accused regarding the allegations and obtain their version of events in order to determine if suspension is necessary.  This will give you a better understanding of the events and you will be in a stronger position to justify a suspension if necessary.

2. Consider any alternatives to suspension

Alternatives that can be considered are:

• assigning the employee to another project away from the investigation;

• giving the employee another person to report to;

• temporarily transferring the employee to another area of the business; or

• keeping the employee in their role if an investigation can be conducted fairly.

3. Be consistent

Whatever action you take in respect of one employee, you will need to be consistent when faced with similar or the same circumstances at a later date.  If not, you could be risking a discrimination claim in this respect.

4. You must have power to suspend

The right to suspend will usually be contained in an employment contract, company policies or the employee handbook.

5. Confirmation in writing

Your letter should include the following:

• the allegations and reasons for suspension;

• confirmation that you have considered alternatives to suspension and explain the reasons they were not suitable;

• confirmation that suspension is not disciplinary action;

• the employee will be pay as normal and receive their usual benefits during the period of suspension;

• an estimate of how long the suspension is likely to last;

• a point of contact so the employee can direct any questions / concerns that they may have; and

• explain what the employee can and cannot do during the period of suspension. For example, that the employee should not contact colleagues, customers or clients or attend the workplace unless otherwise directed.

6. Keep suspension under review

The period of suspension should be for as short a period as possible and where any delays are caused, the employee should be informed of the delays.

If you would like us to review your policies and procedures, or if you any specific queries, please do not hesitate to contact Andréa or Rachel.