When should you suspend employees?
Employers should not suspend employees as a matter of course. Suspension of employees should only be carried out when it is necessary and reasonable in the circumstances.
According to ACAS’ guide on Discipline and grievances at work, suspension may be necessary and reasonable where “relationships have broken down, in gross misconduct cases or where there are risks to an employee’s or the company’s property or responsibilities to other parties. Exceptionally you may wish to consider suspension with pay where you have reasonable grounds for concern that evidence has been tampered with, destroyed or witnesses pressurised before the meeting.”
When incidents of serious misconduct are alleged in the work place, an employer may feel that the alleged misconduct is so severe that it needs to suspend an employee to carry out an investigation regardless of whether the allegations are substantiated. If an employer suspends an employee and it is not necessary and reasonable, then it is possible the employee could resign and bring a constructive unfair dismissal claim for breaching an implied term of mutual trust and confidence.
What happened in Agoreyo v London Borough of Lambeth?
Simone Agoreyo was a teacher who had about 15 years’ experience of teaching both in the UK and abroad. In November 2012, Ms Agoreyo started working at a primary school in South London. Ms Agoreyo had two pupils (aged 5 and 6) who had behavioral issues. On three occasions, Ms Agoreyo had to use reasonable force (as permitted by law) in order to get the children to behave. Following the third instance she was suspended. Ms Agoreyo resigned on the same day as her suspension and subsequently brought a claim against her employer for a breach of contract as a result of a breach of trust and confidence.
On Appeal, the High Court ruled in Ms Agoreyo’s favour and confirmed that suspension is not a neutral act and essentially that suspension should not be a ‘knee-jerk’ reaction. The Judge found that the employer should have spoken with Ms Agoreyo for an account of her response to allegations before suspending her. This need not have been a full-investigation but simply enough to determine whether the potential stigma associated with a formal suspension could have been avoided.
What should employers learn from this case?
Employers should not simply suspend an employee as a precautionary act for investigation. Time should be taken to consider the employee’s comments as to the allegations and ultimately whether suspension can be avoided, such as moving the employee to another area of the business pending the outcome of the investigation.
Suspension is not a neutral act and it can be difficult for an employee to come back from a suspension without some damage to their reputation.
This is especially so if the employee has not actually committed any wrongdoing. It is likely that being suspended immediately will leave the employee feeling punished and ‘guilty until proven innocent’. As a result the employee may feel that there is no longer mutual trust and confidence between the employee and employer.
If the employer is satisfied that it is reasonable to suspend the employee and the contract of employment permits suspension (care should be taken where it is not and legal advice should be sought), the employer should ensure that such a period of suspension is as short as possible and regularly reviewed. Suspension should not be a punishment but merely in order to carry out a full investigation promptly. Careful consideration should also be given as to what is told to work colleagues concerning the suspension so that the fairness of a disciplinary hearing is not prejudiced.