Suspending an employee should not be a knee-jerk reaction

Ms Agoreyo was a teacher at a primary school for the London Borough of Lambeth. She was an experienced teacher but had not been trained on how to deal with children with behavioural difficulties.

Ms Agoreyo started working at the school in November 2012.  By December 2012 she had been subject to three allegations of using unreasonable force against two children with behavioural issues. Two of these allegations had been looked into by the head teacher who decided that the teacher had used reasonable force.

Shortly after the third incident occurred, a fellow teacher brought all of the incidents to the attention of the executive head teacher. The executive head immediately began an investigation into all of the allegations. She suspended Ms Agoreyo and emphasised in the suspension letter that “the suspension is a neutral action and is not a disciplinary sanction” as well as stating that the reason for the suspension was “to allow the investigation to be conducted fairly”.

Ms Agoreyo offered her resignation the same day she was suspended and claimed that the suspension was a repudiatory breach of the implied duty of trust and confidence. Her argument was that the suspension was not necessary or reasonable in order to carry out the investigation. It is worth noting that she did not have the relevant length of service to be able to claim constructive unfair dismissal, although this would likely have been her main claim if she had been employed for at least two years.

In the County Court, the judge found that the executive head was “bound” to suspend Ms Agoreyo which indicates that the judge considered there to be no alternative to suspension. He found in favour of the London Borough of Lambeth and dismissed Ms Agoreyo’s claim of breach of contract.

This decision was reversed upon an appeal to the High Court. The judge cited a series of factors which led to his decision:

• There had been no attempt to establish Ms Agoreyo’s version of the events prior to the suspension;
  
  
• There had been no consideration of alternatives to suspension; and
  
  
• The letter of suspension had not offered any reasons why the investigation would be unfair unless Ms Agoreyo were to be suspended.

In addition, the Judge highlighted that Ms Agoreyo had requested assistance in dealing with the difficult children. Measures were due to be put in place but had not been fully implemented. He also pointed out that the executive head had appeared to disregard the fact that two of the incidents had been looked into already by the head teacher. 

All of these factors together pointed to the fact that the decision to suspend Ms Agoreyo was a “knee-jerk” reaction to the allegations which the High Court judge found to be sufficient to amount to a breach the implied term of trust and confidence.

What does this mean for you or your business?

While commencement of disciplinary proceedings and full investigation will be expected of a reasonable employer in most circumstances, there is not always a need for the employee to be suspended during this process especially when dealing with qualified professionals where there could be a stigma attached to such a suspension. If an employer is to suspend, careful consideration of why suspension is appropriate should be considered and the employee should be notified of that reason and this should be documented. Also check if there are any alternatives to suspension, for example in this case, could the employee have been given other duties that meant she did not have any contact with the  children such as an administrative role?

What do you need to be doing now?

Employers should review their employment contracts and disciplinary policies to understand whether they refer to suspension and follow the correct process. If the employer feels there is a need to suspend an employee, they should document the reasons for the suspension – as this may come in handy in defending any future Tribunal claim.

This case proves that simply stating the suspension is not a disciplinary act will not be enough to protect an employer from a claim for breach of contract.

This commentary has been prepared for the purpose of an article only. It should not be regarded as a substitute for taking legal advice.