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25th August 2017

Legal Issues – Suspension

The question of whether to suspend an employee suspected of wrongdoing is a common one, but it can be difficult to know if doing so is the right decision. This update reviews the topic of suspension and highlights some issues that employers can consider when faced with such a question.

Legal framework

Contracts of employment will contain ‘express’ terms, which are the clauses actually written into the contract in black and white, such as salary, notice and hours of work. There are also ‘implied’ terms, which are not written down but nonetheless apply to the employment relationship.

The relevant implied term in relation to suspension is generally ‘mutual trust and confidence’, which in essence means the duty on both the employer and employee to act reasonably in relation to one another. Seriously unreasonable behaviour can constitute a breach of that duty, which in turn can effect a breach of contract.

Suspension itself is not unlawful, and in many circumstances it will be an appropriate element in disciplinary proceedings. However, as the cases below outline, it will not always be appropriate and some consideration should be given to potential alternatives before removing an employee from the workplace.

Case law

In Gogay v Hertfordshire County Council, a 2000 case, the Court of Appeal (CA) awarded compensation to a care worker in a children’s home in relation to her being suspended following allegations of sexual abuse. There was no initial evidence to suggest that Ms Gogay had committed the allegations in question, and it was found that the decision to suspend her had been a ‘knee-jerk reaction’. As such, the CA held that the council had breached its duty of trust and confidence towards Ms Gogay.

Employers will often state in suspension letters that suspension does not constitute disciplinary action. However, in 2010, the CA in Mezey v South West London and St George’s Mental Health NHS Trust stated that suspension is in fact not a neutral act and that it can ‘cast a shadow’ over the employee’s competence. In that case, the CA granted an injunction preventing the employer from suspending Ms Mezey.

A recent case has followed the decisions above. In Agoreyo v London Borough of Lambeth Ms Agoreyo taught a class of 29 children, including two pupils who presented challenging behaviour. Ms Agoreyo was accused of using unreasonable force on one of the difficult pupils on several occasions, but an initial investigation by the headteacher (Ms Alder) showed that no unreasonable force had been used.

However, the executive headteacher of the school (Ms Mulholland) suspended Ms Agoreyo in light of the allegations. The suspension letter stated that the suspension was a neutral act and that its purpose was to allow the investigation to be conducted fairly. Ms Agoreyo then resigned from her post. The police were involved but no charges were brought, and Ms Agoreyo was not barred from teaching by the Disclosure and Barring Service (the equivalent of Disclosure Scotland south of the border).

Ms Agoreyo brought a claim in the County Court, claiming that the decision to suspend her was a breach of her contract. The Court disagreed, finding that the council was ‘bound’ to suspend Ms Agoreyo in light of the allegations. Ms Agoreyo appealed.

The High Court pointed to a number of flaws. For example, Ms Mulholland had effectively ignored Ms Alder’s findings (after investigation) that no misconduct had been committed and Ms Mulholland also did not attempt to ascertain Ms Agoreyo’s version of events. In addition, the suspension letter did not cite child safety as the reason for the suspension, and no alternatives to suspension were considered. As such, the suspension was found to be a default, knee-jerk reaction and consequently was a breach of the implied term of trust and confidence.

What does this mean?

The cases above do not mean that suspension should be ruled out as an option in disciplinary matters. What they do highlight is the need for employers to carefully consider whether suspension is the correct approach, taking into account all the circumstances involved.

An initial investigation into the allegations is likely to be helpful when making such a decision. If initial discussions with those involved, including the employee under suspicion, suggest that serious misconduct has taken place, suspension may be something to consider.

However, even in those circumstances it is important to consider whether there is a real risk in allowing the employee to continue working. Allegations of a physical altercation between two employees may be serious, but unless there is a likelihood of further assault it may nevertheless be a step too far to suspend those involved.

In addition, alternatives to suspension should always be considered. In the example just given, other options might be to move one or both employees to another area or piece of work until a full investigation can be conducted.

If after weighing up the options suspension is considered to be appropriate, the employee in question should normally receive full pay when not at work. It is also advisable to conduct any investigation as quickly (but thoroughly) as possible, as the longer a suspension lasts the more likely it may be for the employee to be able to argue that trust and confidence has been breached.

If you have any questions on any of the issues mentioned in the above article please contact Seanpaul McCahill.

25th August 2017