In the case of Agoreyo v London Borough of Lambeth the High Court found that the suspension of a teacher amounted to a breach of the implied duty of trust and confidence.
Employees are usually suspended from duties as a protective measure where:
- The employee may be a threat to the business, other employees or customers.
- The employee may impede an investigation into allegations of misconduct (for example by influencing witnesses or destroying evidence).
- There is a relationship breakdown (although this reason might prove more controversial).
There has been much case law considering when it is appropriate to suspend an employee and in some cases employees have successfully argued their employer has breached the implied duty of trust and confidence.
Mrs Agoreyo, a teacher with 15 years’ experience at the relevant time, commenced a fixed term contract teaching year two primary children for a period of nine months. Some five weeks into the contract Mrs Agoreyo was suspended on the basis that she had used force on three occasions involving two particular children (aged five and six). The children in question had severe behavioural issues, Mrs Agoreyo had sought advice and support in relation to the children and her line manager knew of at least two of the occasions and had found that disciplinary action was not appropriate. There was no evidence that Mrs Agoreyo was asked for her response to the allegations and nothing to suggest that an alternative to the suspension was considered. Mrs Agoreyo resigned on the same day she was suspended.
The High Court
The suspension amounted to a breach of the implied term of trust and confidence and constituted a repudiatory breach of contract. The Court found the suspension was adopted as the default position and was largely a knee-jerk reaction to the accusations against Mrs Agoreyo.
The High Court recognised the debate as to whether suspension is a neutral act but confirmed that the courts do not view it as such, certainly not in relation to a qualified professional in a vocation as much as a job, citing the Court of Appeal decision in Mezey v South West London and St George’s Mental Health NHS Trust “Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence. Of course this does not mean that it cannot be done, but it is not a neutral act”.
Although only a High Court case, it highlights that employers should be cautious when suspending employees. Suspension will be a necessity in certain situations but it should not be used as a default position. Consideration should be given as to the reason for the suspension and any possible alternatives. The case also provides useful clarification that suspension is not a neutral act in the context of a professional carrying out a vocation. The implications of being suspended can be severe in certain industries and employers need to be mindful of the possibility of a breach of contract claim when suspension is used inappropriately.
Key considerations when suspending an employee
Contractual provisions – is there a contractual right to suspend the employee? An express contractual provision allowing suspension and clarifying pay and benefits is advisable. If there is no such provision consider whether the employee has the implied right to work, for example do they lose remuneration such as shift premiums by not working?
Communication – ensure the employee is informed of all the details of the suspension, including: how long they are suspended for, rights and obligations during suspension and clarification that the suspension is not a disciplinary sanction.
Trust and confidence – Are there reasonable grounds to suspend the employee? Is there a suitable alternative to suspension? For example, working from home or another area of the business?
Case law has confirmed that knee-jerk suspensions should be avoided. In the case of Gogay v Hertfordshire County Council the Court of Appeal found that the employer had breached the implied term of trust and confidence by suspending a care worker pending an investigation into (a completely unfounded) sexual abuse claim. There was no prima facie evidence against the care worker and the suspension was considered to be an unjustifiable knee-jerk reaction.
Discrimination – to avoid allegations of discrimination, employers should take a consistent approach when considering suspension. If an individual with a protected characteristic is suspended and is able to compare their case to an individual without such a characteristic who is not suspended, an employer might find themselves with a direct discrimination claim.
Pay – employers cannot suspend an employee without pay unless there is an express contractual right to do so. Even if the contract provides for suspension without pay, employers should tread carefully as such a suspension is more likely to be classed as a breach of trust and confidence.
Length of suspension – it is important to keep the suspension under review and to lift the suspension as soon as the allegations are addressed.
Record keeping – keep a paper trail throughout, including the reason for the suspension, the duration, reviews and the final outcome.
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