Suspending an employee pending an investigation
Before suspending an employee, for example, as part of a disciplinary process, an employer should think carefully about the reasons why they are doing this – and whether it is necessary.
The 2017 case of Agoreyo v London Borough of Lambeth (the appeal of which is being heard by the Court of Appeal this week) is a good example of where suspending an employee can cause repercussions even where suspension is expressed to be a ‘neutral act’.
In this case, the employee (who was a primary school teacher) was suspended pending an investigation into allegations against her that she had used unreasonable force on a pupil.
The suspension letter stated that “The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”
It was held at first instance that the reasonable and proper cause to suspend Ms Agoreyo was on grounds of the School’s overriding duty to protect children, but the High Court held that this finding could not stand given that the stated purpose of the suspension was not to protect children but to ensure a fair investigation. In this case the employee had less than 2 years’ service and brought a claim in the Civil Courts for breach of contract.
This case highlights two important considerations. Firstly, why suspension is necessary. It is only necessary where either:
1. there is a real risk the employee will interfere with the investigation; or,
2. there is a real risk the employee’s presence will damage business interests.
The second important consideration is that the proper reason for suspension must be stated in the letter confirming suspension.
A failure to do this can result in the employee claiming a breach of the implied duty of trust and confidence. This can result in a claim for Constructive Dismissal if the employee resigns in response to the breach. If the breach is in respect of disciplinary steps or a redundancy process, prior to any dismissal, the employee may litigate this as a breach of contract claim in the Civil Courts rather than in the Employment Tribunal. This can lead to an uncapped breach of contract claim and allows employees to claim against the employer even where they do not have qualifying (2 years’) service.
It is therefore essential, in all cases where suspension in being considered (regardless of length of service), for the employer to carefully and pro-actively consider what the true purpose of the suspension would be and whether there might be any alternative. This should be documented (i.e. in the letter confirming suspension). A contractual right to suspend may also assist in such a situation.
We will provide a further update on this subject once the Court of Appeal has published its Judgment on the appeal.