The High Court has found that the unjustified suspension of an employee constituted a breach of the implied contractual duty of trust and confidence (and therefore a fundamental breach of contract).
When an employer is faced with allegations of misconduct against one of its employees, it will often automatically take the decision to suspend the employee.
Typically, the employer will assert that suspension is necessary to carry out a proper investigation, or be fearful that a failure to suspend may be perceived (in any subsequent proceedings) as an indicator that the alleged misconduct was not that serious.
However, in some cases, suspension is ill thought out and not an appropriate course of action in the circumstances. Conversely, the negative impact on the employee might be considered so severe or the act of suspension so disproportionate that it amounts to a repudiatory breach of the contract, entitling the employee to resign and claim constructive dismissal.
In Agoreyo v. London Borough of Lambeth, Ms Agoreyo was employed as a primary school teacher. She was suspended following allegations that she had used unreasonable physical force towards two pupils, who were known by the school to exhibit particularly challenging behaviour. The Headteacher conducted a preliminary investigation and concluded that reasonable force had been used. However, Ms Agoreyo was later informed by the Executive Head that she would be suspended pending further investigation. Ms Agoreyo responded to this by resigning.
She later filed claims for breach of contract in the County Court, arguing that the actions of the employer amounted to a breach of the implied trust and confidence. She did not have two years’ service and therefore did not qualify for unfair dismissal protection. Her case was that the act of suspension was unnecessary and was not reasonably required for the investigation to take place.
The original finding of the County Court was that the employer was “bound” to suspend the employee and had no choice but to do so following the allegations of misconduct. Ms Agoreyo appealed to the High Court.
High Court decision
The High Court reversed the decision on appeal. It concluded that there was no evidence to suggest the employer had no other choice. Further, an argument that the employer had suspended the employee as a result of its overriding duty to protect the children did not stand up because the stated reason for the suspension was to ensure a proper investigation.
The High Court determined that the decision to suspend was adopted as the default position by the employer and was largely a knee-jerk reaction. In particular:
- there was no evidence that the Executive Head had spoken to the Headteacher about her knowledge of what had happened, or asked her about the support put in place for Ms Agoreyo to manage such difficult pupils;
- Ms Agoreyo was not asked for her response to the allegations; and
- there is no evidence that consideration was given to any alternative to suspension, before the decision to suspend was taken.
So, what is the proper approach to suspension?
The commonly adhered to rules still apply – suspension should be on full pay, for no longer than is reasonably necessary, and should imply no assumption of guilt. All of these matters should be addressed in the letter suspending the employee. Ideally there will be a contractual power to suspend the employee, or at least compliance with applicable internal procedures.
However, these steps alone will rarely be enough in themselves. Whether suspension is truly necessary (and, if so, the reasons for it) should be carefully considered and explained in the suspension letter.
It is unlikely to be sufficient to rely on an argument that suspension is necessary in order to ensure a fair investigation, unless there is a real reason to believe that the employee’s presence in the office will hamper this. If there are true concerns to take into account (for example about the integrity of the investigation or in respect of the employer’s duty to other employees or third parties), other alternatives should at least be considered even if they are ultimately not adopted. These might include, for example, temporary redeployment of the employee to a different area.
An employer should always be satisfied it has reasonable and proper cause to suspend. The courts have been clear that suspension is not a neutral act (even if the employer may genuinely perceive it in that way). Employees may find it difficult to return to the workplace and carry out their role once they have been “tainted” by an unjustified suspension, even if no further action is taken. Therefore, it is not an approach that should be applied as a matter of course, without considered thought.