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When is it right to suspend an employee?- The need to be careful

22nd September 2017

It is common for disciplinary procedures to enable the employers to suspend an employee when there is a disciplinary allegation being investigated and procedure followed. A recent case in the High Court has indicated that while an employer can be entitled to act in that manner it is not always the right or appropriate thing to do, and could amount to a breach of the implied term of mutual trust and confidence between the employer and employee. In turn that can lead the employer into being vulnerable to facing a claim of constructive dismissal.

The case of Agoreyo v London Borough of Lambeth involved a teacher with 15 years experience. An allegation was made against the teacher, that she had used an unreasonable degree of force to get two students to behave.

The teacher was suspended. The suspension letter contained the usual statements associated with a suspension, namely that:-

  • She was suspended on full pay,

  • The suspension was a precautionary act, pending the completion of full investigations into the allegations,

  • The teacher would be given a full opportunity to provide her account of events, and that

The suspension was a “neutral action and not a disciplinary sanction.”

So far so good, you may well think. However, the teacher resigned on the day of the suspension. Subsequently court proceedings commenced.

In reaching its decision, the court noted that suspension is not always a neutral act, particularly where it relates to qualified professionals with a vocation. The reason for that is that the suspension can damage the employee’s reputation and make returning to work after suspension very difficult, even if the allegations proved to be unfounded.

In this particular case the court noted that the employer could have taken other steps before deciding to suspend the teacher, such as speaking to her about what had happened and asking for her response at that point to the allegations, giving her sufficient time for teaching supports to be put in place, and considering whether any alternative to suspension was a more appropriate step to take. The court observed that a suspension should not be used as a “knee jerk” reaction. In conclusion, the court ruled that the suspension in this case did amount to a breach of the implied term of trust and confidence, and that the employee was entitled to bring the claim. In this case it was noted that the suspension had been invoked in order to protect the children, but to “allow the investigation to be conducted fairly.”

The case indicates that suspension should not always be seen as the immediate or right approach for an employer to take with an employee accused of some type of wrongdoing. Obviously, an employer should consider the relative merits of the options available at the start of any potential disciplinary process, one option being suspension. We realise that this could prove difficult if the allegation is complicated, and there is a genuine and serious risk that the continued presence of the employee could jeopardise a proper investigation.

On a practical note there are a number of points that an employer could consider when deciding if it should suspend the employee or not:-

  • See if there is a set contractual right (arising from the written contract of employment) to suspend the employee while carrying out an investigation.  It will be somewhat easier to convince a court or Employment Tribunal that an employer has acted properly if it first has a contractual right to suspend the employee, rather than relying on a custom or non-contractual procedure.

  • Examine what the staff handbook or any staff policies say about the use of powers of suspension, and follow them carefully, but not slavishly. 

  • Consider the possibility of other options to suspension, particularly if the other options can enable an investigation to still go ahead promptly and effectively, egs assigning other duties temporarily, or moving to a different work location temporarily (if possible).
  • Having an initial informal approach to the allegations and taking a preliminary view on the need for suspension based on the employee’s initial responses to the allegation.

If you still fee that suspension is required, then try to keep it as short as possible, and try to keep the individual notified of the amount of time the suspension will take. Ensure that the suspension is only as long as is absolutely needed to deal with the relevant investigation.

In any event employers should always review their relevant policies and procedures very carefully before suspending an employee, and remember that the employee is still entitled to their normal pay and benefits throughout any period of suspension.  

While the case may suggest that a more cautious approach is certainly required when dealing with members of a profession, or vocation (eg doctors, nurses, teachers, accountants, solicitors, lecturers), it does involve issues that potentially cover employees much more generally. The matters of principle that arise from the case can be seen as relevant to most employees.  

The case clearly highlights the need for employers to have clear written procedures on this issue.  

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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