Suspending employees still needs careful consideration: how to suspend lawfully

A High Court case from earlier this week issued some clear guidance on suspending employees suspected of wrongdoing. Agoreyo v London Borough of Lambeth doesn’t really change the law, but it does demonstrate that employers need to hit a high bar if they want to suspend employees lawfully. If you get this wrong, the employee would be entitled to resign and claim constructive unfair dismissal or breach of the implied duty of mutual trust and confidence between employer and employee. 

Background. The claimant, Ms Agoreyo, was a teacher with 15 years’ experience. Two of her pupils had some serious behavioural issues. The school was in the process of putting in place additional support to help deal with these issues, but that support had not been fully implemented at the time of the claimant’s suspension. 

The suspension. Ms Agoreyo was suspended following three incidents in which she used a degree of force to get the two pupils to behave (teachers are permitted to use reasonable force under the Education and Inspections Act 2006). As noted by the judge, no criminal proceedings were brought against the claimant and she has not been barred from teaching. 

The suspension letter said all the usual things: 

• she was suspended on normal pay; 
• it was a precautionary act pending a full investigation into allegations, during which the claimant would be given full opportunity to provide her account of events; and
• the suspension was a “neutral action and not a disciplinary action”. 

The claimant resigned on the day of the suspension (although the parties disagreed as to whether she actually received the suspension letter before she resigned). 

Suspension is not a neutral act. Although employees can be suspended when there is reasonable and proper cause, the court reaffirmed existing cases that suspension is not a neutral act, particularly where it relates to qualified professionals with a vocation. This is because it is often difficult, in practice, to come back from a suspension without some damage to one’s reputation, even if the related allegations are unfounded. 

Before suspending the claimant, the employer should have:

• spoken to her about what occurred and asked her for her response to the allegations; 
• given sufficient time for the teaching supports to be put in place; and 
• considered whether any alternatives to suspension were more appropriate. 

The court determined that Ms Agoreyo’s suspension was sufficient to repudiate the employment contract by breaching the implied duty of mutual trust and confidence (i.e. suspension in itself was enough to destroy or seriously damage the employment relationship, entitling the employee to bring a claim for breach). 

Is there a slight paradox in all this? Quite often, particularly in complicated fact patterns, the employer knows that it will take a long time to run a full investigation and it is keen to keep the employee out of the office to avoid that person continuing in their role where there is doubt that they are suitable to do so, or so as to prevent interference the investigation. Agoreyo v London Borough of Lambeth suggests that this position may be untenable if the employee decides to test it.  

Top tips when suspending employees. So here are some tips when you are thinking about suspending employees:

• identify whether there is an express power to suspend employees in the employment contract. Although you will still need to think through whether there’s proper cause to exercise that power, it will be easier to defend a suspension in reliance on an express power; 
• equally, see what your employee handbook says about the circumstances in which suspension may be appropriate, and comply with any agreed procedures; 
• consider the alternatives to suspension, such as reassigning the employee to another area of the business for a limited period, or putting them on a special project. Think creatively. Suspension should not be a “knee jerk” reaction;  
• wherever possible, speak with the employee before making a decision to suspend to understand their initial take on the allegations. Do they have information that would make you think differently about them continuing in their role pending investigation?; 
• if you do decide that suspension is the most appropriate course of action:
  • consider what you can say on a neutral basis to the employee’s colleagues and clients. If possible, agree the response with the suspended individual; 
  • make sure you keep the employee informed about the investigation process regularly; and
  • review whether suspension remains appropriate on an ongoing basis. Even if suspension were originally justified, an employee may subsequently claim that its length has caused them damage and would entitle them to claim constructive dismissal or breach of trust and confidence; 
• if the employee ultimately returns to work, think about how bonus accrual or long-term incentive awards should be treated.