For some employers it is an automatic reaction to put an employee on suspension if allegations of misconduct are received, but doing this may put them at risk of claims from the employee. This week we look at the recent guidance provided by the Court of Appeal in the case of London Borough of Lambeth v Agoreyo on when it is (and is not) appropriate to suspend an employee.
Ms Agoreyo was an experienced primary school teacher who was suspended pending investigation after two teaching assistants accused her of using an excessive degree of force against two children with behavioural issues. The children were being disruptive in class and Ms Agoreyo had been seen “dragging” each child out of the classroom, and on a further occasion had been seen picking up and carrying the disruptive child out of the classroom.
Ms Agoreyo resigned the same day that she was suspended and brought a claim, unusually in the County Court rather than in the Employment Tribunal, on the basis that the School’s behaviour in suspending her amounted to a repudiatory breach of the implied term of trust and confidence.
At first instance, the County Court found in favour of the School, whereas on appeal the High Court found in favour of Ms Agoreyo on the basis that the School’s decision to suspend was not “necessary” and had been a “knee-jerk reaction”. The case then progressed to the Court of Appeal.
The Court of Appeal found that the High Court had used the wrong test in deciding the case based on whether it was “necessary” to suspend. The Court of Appeal said this was setting the bar too high and the correct test was whether the School had “reasonable and proper cause” to suspend.
They also confirmed that previous case law which had considered whether suspension was a “neutral” act was not a relevant question, or particularly helpful to deciding if there had been a breach of trust and confidence.
The Court of Appeal confirmed that suspension can amount to a breach of the implied term of trust and confidence, but this will depend on the facts of the case and whether suspension was reasonable in those circumstances. In this case, they decided the School had been reasonable to suspend Ms Agoreyo.
Points to note
This will be welcome clarification for employers after the High Court case had seemingly raised the standard of when employers could suspend to only when it was “necessary” to do so.
However, it is also a reminder for employers that suspension should not be used automatically without first thinking about if there are justifications for doing so and without considering if other options are available, such as working from home.
Generally, suspension is appropriate in cases of serious misconduct, particularly if there is a threat that the employee could prejudice the investigation by destroying or falsifying evidence or attempting to influence witnesses. It can also be appropriate where there is a breakdown of the working relationship between the parties. Even so, suspension should not be used as a disciplinary measure, should be for as short a period as possible and should be reviewed periodically. Suspension must always be paid unless there is a clear contractual right in place to suspend without pay. Finally, care should be taken when deciding what to communicate to colleagues and clients about an employee’s absence.
To protect against claims from employees for breaching their implied right to work, it is sensible for all employers to have a clause in the contract of employment giving an express right to suspend employees. It is also important that employers have disciplinary policies in place to provide guidance on when suspension may be used, and that managers are trained on when it is appropriate to use suspension as part of a disciplinary process.