To Suspend or Not To Suspend

Most companies will have a section in their handbook that explains the company’s right to suspend an employee when carrying out an investigation into alleged misconduct. However, the recent case of Agoreyo v London Borough of Lambeth shows why it is important to think carefully before issuing a suspension, whatever the allegation.

Ms Agoreyo, a teacher, was accused of three instances of using unreasonable force towards two children in her class, who were known to exhibit challenging behaviour. The Head Teacher investigated at least two of the allegations and the allegations weren’t upheld. Agoreyo was however, then suspended by the executive head. 

Agoreyo received a letter stating that the suspension was a ‘neutral act’ and not a disciplinary sanction. It also indicated that the purpose of the suspension was to allow an investigation to be conducted fairly.

A claim was brought before the county court for damages for breach of contract, arguing that, in suspending Agoreyo, the council had breached the implied term of mutual trust and confidence. Although the claim was initially unsuccessful, Agoreyo won her case on appeal and the High Court made the following criticisms of the council’s handling of the case:

  • Agoreyo was not asked for her version of events before suspension.
  • The head teacher’s initial investigation, which concluded that unreasonable force wasn’t used, was overlooked.
  • No alternatives to suspension were considered.
  • No explanation was given as to why an investigation could not be carried out fairly without Agoreyo being suspended.

As a result, the High Court held that Agoreyo’s suspension was unnecessary and therefore breached the implied term of mutual trust and confidence. It confirmed the view expressed in previous cases that suspension is not a neutral act and should not be considered a ‘routine response’ to the need to investigate.

What to Learn from this case?

In light of this case, employers should think carefully before suspension, and not use it routinely when it comes to a disciplinary procedure. Employees can mitigate this risk by ensuring the following points are considered in deciding whether or not suspension is necessary:

  • Would the employee’s presence impede an investigation?
  • Is there a risk of the employee interfering with witnesses or evidence?
  • Is there a risk to the safety of other staff, customers, suppliers or service users?
  • Are there suitable alternatives?
  • Is suspension reasonable in the circumstances?

There will still be cases where suspension is necessary however, employers should exercise caution to ensure that it is not the routine, but when used must be a necessary part of that particular disciplinary procedure.

Employers can also minimise risk by ensuring the letter of suspension explains why it is necessary, so it is clear that the decision has been carefully thought through. It is no longer acceptable to state that the suspension implies no criticism of the employee.

To talk to our HR Consultancy Team about your disciplinary procedures or about any other employment issues, please contact us on 01302 341 344.

By Kris Kerins BSc (Hons) PGC (Tech Mgmt) – Risk Services Adviser

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