What are the legal consequences of suspending an employee? In particular, in what circumstances will an employer breach the implied term of trust and confidence?
The issue has been considered by the Court of Appeal in the case of London Borough of Lambeth v Agoreyo. Perhaps not surprisingly, the Court has confirmed that an employer will be acting lawfully when it has reasonable and proper cause for suspending the employee.
A primary school suspended a teacher after two teaching assistants had accused her of using excessive force against two pupils with special educational needs. Ms Agoreyo claimed it was a ‘kneejerk’ suspension that breached trust and confidence. She resigned and brought a tribunal claim.
The claim was initially dismissed, but on appeal, the High Court held that it had not been necessary to suspend Ms Agoreyo, and therefore the suspension was a breach of trust and confidence. The Court of Appeal overturned the High Court’s decision. It said that the correct legal test was whether the school had reasonable and proper cause to suspend, and the original judge was entitled to hold that it did. The High Court fell into error as it seemed to have adopted a test of whether it was necessary to suspend and that placed too high a burden on the school.
Accordingly, Ms Agoreyo’s claim that her suspension was a breach of contract failed. Tips for employers:
- Employers are recommended to review their staff contracts and disciplinary policies and procedures to ensure these include a right for the employer to suspend.
- Don’t automatically suspend in all disciplinary cases. Employers should stop and reflect and ask themselves whether there are reasonable and proper grounds to suspend. For example, how serious are the allegations; is dismissal a real possibility; does evidence need to be preserved; are other employees’ safety or dignity at stake?
- Ensure that the suspension is kept under review, particularly as evidence emerges in the course of any investigation which may present any concerns in a different, less serious, light.
- Confirm the suspension in writing, including the employer’s expectations of the employee during their period of suspension, for example whether the employee will have ongoing access to the employer’s IT systems and whether the employee may have any contact with clients and work colleagues. If the suspension is likely to last more than a few days, consider seeking to agree with the employee how their absence will be communicated to colleagues and customers.