To suspend or not to suspend
Nick Jones, Head of Employment at Gregg Latchams, reports on a recent High Court judgment that considered the question of whether suspension of an employee could amount to a breach of contract, sufficient to allow an employee to resign and pursue a claim.
It is relatively common for employers, faced with allegations of serious misconduct by one of their employees, to suspend the employee whilst disciplinary investigations are ongoing. However, a recent High Court decision in Agoreyo v London Borough of Lambeth acts as a reminder to employers that they must take care before implementing a suspension and ensure that any decision to suspend is not a knee-jerk reaction.
The case involved a teacher who was suspended following three separate allegations that she had used inappropriate force when handling the conduct of two children in her class who had displayed challenging behaviours.
Upon being suspended the teacher resigned, and before the court, claimed that the employer’s action in suspending her had amounted to a breach of contract. The teacher argued that the action of the employer was intended to fundamentally breach the implied term of trust and confidence.
The teacher’s claim did not succeed before the county court. However, on appeal to the High Court it was found that the act of suspending the employee was sufficient to amount to a breach of contract that entitled the employee to resign. Although the letter suspending the employee had referred to the act of suspension as being a “neutral act”, the High Court found that it was not. In the Judge’s view, suspension could not be a neutral act, particularly where the employee was a qualified professional, such as a teacher, whose role was as much a vocation as a job.
The High Court found that there was no indication from the employer of who had actually taken the decision to suspend the employee. There was no indication that any attempt had been made to consider the employee’s version of events before implementing the suspension, and no evidence that any alternative to suspension had been considered. Although the letter confirming the suspension had stated that the reason for the suspension was to “allow the investigation to be conducted fairly”, the letter did not explain why the investigation could not be conducted fairly without the need for suspension.
The High Court concluded that the act of suspending the employee had been adopted as a default position and largely as a knee-jerk reaction, and that this was sufficient to amount to a breach of the implied term of mutual trust and confidence.
Advice for Clients
The case serves as a reminder to employers that care must be taken when suspending an employee during any disciplinary process. Employers are advised to think carefully about suspending an employee, to keep a record or note of their decision, and the reason for it. Care should also be taken, in appropriate circumstances, to consider the employee’s version of events before taking the decision to suspend, and to ensure that a clear record is kept of who took the decision and the reason for it.
If your business requires advice upon suspension, disciplinary issues, or any other employment law matter, we recommend you speak to either Nick Jones or Cecily Donoghue, employment solicitors in our Bristol office.