Stronachs Logo

When there has been an allegation of serious misconduct, an employer will often wish to suspend the individual who has been implicated while it conducts an investigation. This will usually involve excluding the employee from the workplace (and usually also from the employer’s systems of communication) as well as preventing them from working for the employer for the period of suspension while continuing the contract of employment by way of paying full remuneration). Letters suspending employees in such circumstances will often state that “suspension is not a punishment” and that no outcome has yet been determined. However, employees will often see suspension as a hostile act and may assume that the outcome of the investigation is a foregone conclusion. Suspension is a serious step and employers should think carefully before taking it. If there are not reasonable grounds for the suspension, there is a risk that the employer will face an argument that they have  breached the implied term of mutual trust and confidence which exists in all contracts of employment, which can have serious repercussions.

 

The recent case of Simone Agoreyo v London Borough of Lambeth is a good example of what can result from an employer’s decision to suspend in response to an allegation without pausing to consider whether such a course of action was necessary or could reasonably be avoided. In this case, Mrs Agoreyo, a primary school teacher, had been responsible for a class with two pupils with severe behavioural difficulties. She had made her line manager aware of these difficulties, including two incidents where she was required to physically remove the children from her classroom. Her line manager investigated these instances and found that no excessive force was used. There was then a third incident where Mrs Agoreyo was required to use physical force in relation to one of the difficult children. This incident and the preceding events where brought to the attention of the head teacher by another member of staff, who issued a letter suspending Mrs Agoreyo pending investigation. Mrs Agoreyo claimed that it was unreasonable and unnecessary to suspend her in the circumstances and that the suspension had been a breach of the implied term of trust and confidence, in response to which Mrs Agoreyo resigned and claimed constructive dismissal   The claim was relatively unusual in that it was initially raised in the English County Court and was a “pure” breach of contract  claim rather than a statutory claim of unfair dismissal relying on a breach of contract but the same principles would apply in such a case.

Mrs Agoreyo was unsuccessful in the County Court but on appeal to the  High Court Mr Justice Foskett  found in  her favour. Referring to previous case law the Court stated that suspension is not a “neutral act”, and should “not be considered a routine response to the need for an investigation”. This is because suspension inevitably casts doubt over an individual’s competence, especially in a qualified profession such as teaching.
The Court made a number of criticisms of the Council.  It could not be accepted that it was “bound” to suspend where there was no evidence of consideration of alternatives. Crucially it could not be accepted that there was reasonable and proper cause to suspend on the grounds of an overriding duty to protect children given the stated purpose of the suspension was not for child protection reasons but “to allow the investigation to be conducted fairly”.    Furthermore the Claimant’s line manager has previously investigated at least two of the incidents and found them not to be worthy of disciplinary action and the Council had suspended in circumstances where it had  failed to fully implement a scheme of support which Mrs Agoreyo had been requesting for weeks. Against that background it was clear that the suspension was “largely a knee-jerk response” and was a breach of the implied term of trust and confidence. Accordingly Mrs Agoreyo’s resignation amounted to constructive dismissal.

Comment

The case is useful reminder to employers that they should not suspend employees without careful consideration as to what the purpose of suspension is, whether there are alternatives and whether it is warranted in all the circumstances. This is not to say, of course, that employers should never suspend an employee during an investigation. In cases where gross misconduct is alleged, it can undermine an employer’s position if the individual is not suspended but is subsequently found to have committed the act and is dismissed, because failure to suspend may be seen as inconsistent with the conclusion that the misconduct in question was so serious that the employer reasonably took the view that they must terminate. What is important, however, is that suspension is not a knee-jerk reaction to an allegation. When considering whether to suspend an individual, employers should specifically think about the allegations and the possible consequences if these are found to be true. Consideration should also be given to any real risks arising from having the employee remain on the premises (for example the destruction of any evidence) and weigh this against any alternatives to suspension that might be available (for example limiting the individual’s duties to specific tasks during the investigation). Such consideration should ideally be documented and set out in the letter of suspension.

If you have any queries about disciplinary investigations and suspension in particular, please get in touch with a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

 

Chambers UK 2018

Contact Info

ABERDEEN OFFICE
28 Albyn Place, Aberdeen AB10 1YL
Tel: +44 1224 845845

 

INVERNESS OFFICE
Camas House, Pavilion 3, Fairways
Business Park, Inverness IV2 6AA
Tel: + 44 1463 713225

The Legal 500 logo