Newsflash : Warning – take care with suspension!

Summary: Was the suspension of a teacher a neutral act and, if not, did it amount to a breach of the implied term of mutual trust and confidence?

No, suspension is not a neutral act and yes, an improper suspension can amount to a breach of the above implied term, says the High Court in Agoreyo v London Borough of Lambeth, available here.

Further, that breach can also amount to a ‘repudiatory breach’, i.e. be sufficient in itself to destroy the employment relationship and entitle the employee to bring a claim.

Facts: Ms Agoreyo, the employee, worked as a primary school teacher for the London Borough of Lambeth. She taught a class of about 29 children, aged between five and six years old. Two of her pupils had some serious behavioural issues and the employee made numerous requests to the school where she worked for additional support. This was eventually acknowledged by the school which started to put in place supportive measures for the employee.

However, before all the intended support measures had been put in place, the employee was suspended. This followed three incidents in which the employee used a degree of force to get the two pupils to behave. The allegation against the employee was that she had used unreasonable force. (Teachers are permitted to use reasonable force under the Education and Inspections Act 2006).

The suspension letter said all the usual things, including:

• the employee was suspended on normal pay;
•  suspension was a precautionary act pending a full investigation into allegations, during which the employee would be given full opportunity to provide her account of events; and
• the suspension was a “neutral action and not a disciplinary action” and was to “allow the investigation to be conducted fairly”.

However, before the decision to suspend, the employee was not asked for her comments on the allegations, nor did the employer provide any evidence to suggest that it had considered other alternatives to suspension.

Later that day the employee resigned, seemingly on friendly terms, but later brought a claim against the employer in the County Court for breach of contract. (The employee did not have the required two year’s service to bring a Tribunal claim for unfair dismissal). The employee argued that suspension was not reasonable or necessary.

County Court decision

The County Court held that the employer was bound to suspend the employee after receiving reports of the allegations against her and that the employer had “reasonable and proper cause” to suspend the employee on grounds of its overriding duty to protect children. The employee appealed to the High Court.

High Court decision

The High Court allowed the appeal and held that the employer was not “bound” to suspend the employee. It was not obvious that there was no alternative to suspension. Further no express reasons as to why the employer was “bound” to suspend were given by the County Court in its judgment.

The High Court also disagreed that the employer had “reasonable and proper cause” to suspend the employee on grounds of its overriding duty to protect children. The employer had clearly stated in its suspension letter that its purpose was not to protect children but to ensure a fair investigation.

Further, the suspension procedure was incorrect. The High Court found that:

• there was no evidence of any attempt to understand the employee’s version of events prior to the decision to suspend;
• there was no evidence of any consideration of alternatives to suspension; and
• the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension

The High Court concluded that suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher, given the potential stigma associated with suspension and the potential impact on future career prospects.

In particular, the High Court took into account the statutory guidance for local authorities which stated that suspension as a knee-jerk reaction must be avoided and suspension must not be the default position.

Given this context, the suspension amounted to a breach of the implied duty of trust and confidence. The High Court also held that as suspension took place only a few days after additional supportive measures had been put in place (and had not yet been fully implemented), this also constituted a further repudiatory breach of contract.

Comment: This is an important reminder for employers, particularly when dealing with qualified professionals such as teachers, that they need to take care when considering suspending an employee.

Even (or especially) in cases where the conduct is extremely serious, suspension can never be a knee-jerk reaction and the employer must carefully and pro-actively consider what the true purpose of a suspension would be and whether there might be any alternative.

We recommend the following if you are considering suspending an employee:

• identify whether there is an express power to suspend employees in the employment contract. Although you will still need to think through whether there’s proper cause to exercise that power, it will be easier to defend a suspension in reliance on an express power;
• refer to your employee handbook to check whether it says anything about the circumstances in which suspension may be appropriate, and comply with any agreed procedures;
• carefully consider what the true purpose of the suspension would be and fully document the reasons for the suspension;
• avoid suspension as a “knee jerk” reaction by considering the alternatives, such as reassigning the employee to another area of the business for a limited period, or putting them on a special project;
• wherever possible, speak with the employee before making a decision to suspend to understand their feedback on the allegations;
• consider what you can say on a neutral basis to the employee’s colleagues and your clients where appropriate. If possible, agree the response with the suspended individual;
• make sure you keep the employee informed about the investigation process regularly; and
• review whether suspension remains appropriate on an ongoing basis. Even if suspension were originally justified, an employee may subsequently claim that its length has caused them damage and would entitle them to claim constructive dismissal or breach of trust and confidence.