August 30, 2017

Employers think twice: suspension can be unlawful

Yellow card suspension

The High Court held in Agoreyo v London Borough of Lambeth that the "precautionary" suspension of a teacher, to investigate serious allegations that she had used unreasonable force against two children, amounted to a fundamental breach of her contract of employment.

The Court emphasized that suspension was not a neutral act and could seriously damage the employment relationship, particularly when dealing with a qualified professional where their job was considered to be a vocation.

What happened in the case?

In this case, the teacher was suspended after concerns were raised that she had used unreasonable force against two challenging primary school children on three occasions. The employer made the decision to suspend the teacher after receiving alarming reports from colleagues about her behaviour, which was said to have on one occasion escalated to a "dangerous level". The teacher was not asked to respond to the allegations, nor were any alternatives considered, prior to taking the decision to suspend her. The letter of suspension stated that the purpose of suspension was to investigate the allegations. The teacher denied the allegations, and resigned the same day.

The Court's decison

The Court stated that the school had suspended the teacher as a "knee jerk reaction" to the serious allegations, and as a default position while intending to investigate the matter. The Court took into account statutory guidance that a school had to carefully consider any decision to suspend and consider alternatives. The Court held that the reason for the suspension was not the protection of children, but to "allow the investigation to be conducted fairly".

How should employers handle suspension?

This case emphasises that the suspension of an employee in some cases is not a neutral act and will not preserve the employment relationship, particularly in cases involving qualified professionals where a suspension can seriously damage their career and reputation. It can amount to a fundamental breach of the implied term of trust and confidence, and can be relied upon to support a constructive unfair dismissal claim."

Employers should not jump the gun and suspend an employee at the first report of a potentially serious concern. They should instead swiftly consider the nature of the allegations, the supporting evidence, the employee's account, and the need to suspend the employee in the circumstances of the case, taking into account any alternatives to suspension, and any other relevant information. Employers must weigh up the need to suspend, and be mindful that what may first appear as a serious concern or allegation may be overstated or in the worst case, be without any substance, upon initial probing of the issues and a discussion with the employee.

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