When an employee does something which potentially constitutes misconduct, the common reaction is to suspend employees on full pay, pending any investigation and possible disciplinary hearing. However, a recent case calls this approach into question. Typically, employee suspension has been widely regarded as a ‘neutral act’, meaning it causes no detriment to the employee. The perception is that the employee’s absence allows any investigation to be conducted fairly. However, in the recent case of Agoreyo v. London Borough of Lambeth 2017, doubt has been cast on this.
Ms Agoreyo was a primary school teacher who was suspended because of the alleged physical force she used to secure behavioural compliance from two pupils with “behavioural, emotional and social difficulties”. She was not asked to respond to the allegations and alternatives to her suspension were not considered. She was told she was suspended and resigned later that same day. She was subsequently sent a letter confirming the action taken by the school. The letter stated that the suspension was a neutral act and that its purpose was to allow the investigation to be done fairly. The letter also stated that it was a precautionary suspension, pending a full investigation.
Is employee suspension neutral?
The High Court stated that, contrary to popular belief, employee suspension is not a ‘neutral act’, particularly when it concerns qualified professionals as it automatically brings into question their competence.
The Court noted that the stated reason for the employee suspension was not for the protection of the children. Had this been the case, it may have been a justifiable reason for the suspension. The Court went on to state that the suspension had been the school’s “default position” and that it had been a “knee-jerk reaction” which had been sufficient to breach the implied term relating to trust and confidence.
The High Court held that the school’s decision to suspend Ms Agoreyo amounted to a repudiatory breach of her contract, and that her resignation amounted to a constructive dismissal.
What it means for you
In light of this finding, employers need to ensure that any employee suspension is always justified. It should not be a routine response to an act of misconduct that requires investigation.
Before making a decision to suspend, employers should, where possible, speak with the employee and consider all the relevant circumstances to ensure that there are reasonable grounds for suspension. Thought should also be given as to whether there are reasonable alternatives to suspension, such as transferring an employee to another part of the business or offering the opportunity to undertake different duties.
You’re also advised to review your contracts of employment to ensure that they have a contractual right to suspend your employees.
If the decision is taken to suspend an employee, careful thought should be given as to how an employee’s absence will be communicated to customers, colleagues and other stakeholders. It’s important that nothing is said that could potentially prejudice the fairness of any subsequent disciplinary hearing.
In conclusion, this case highlights the importance of giving due consideration to the question of whether to suspend an employee when allegations of misconduct are raised. If the decision is taken to suspend, employers need to ensure they have acted reasonably and have a clear explanation as to why this course of action has been taken.
If you would like further advice on suspensions or any other HR matter, please do give us a call on 01271 859 267 or email firstname.lastname@example.org.