Suspension – Hang Them All?.

In serious cases of alleged misconduct, an employer will often consider whether an employee should be suspended.  Although sometimes termed as a neutral act which does not amount to disciplinary action of itself, an employee may not look on their sudden suspension in the same way.  Previous case law has held that the employer must have reasonable and proper cause for suspension.  Without carrying out that analysis before suspending, an employer may find that they have breached the implied term of mutual trust and confidence, thereby potentially exposing themselves to a claim for constructive and unfair dismissal.

In the recent case of Mayor and Burgesses of the LB of Lambeth v Agoreyo, Ms Agoreyo worked as an experienced primary school teacher.  Two in a class of up to 29 children showed very challenging behavior and it was alleged that she had used unreasonable force towards these two children on three occasions over a period of three weeks.  She was suspended pending investigation and asked if she could resign; the Head agreed and she wrote her resignation letter immediately.  She subsequently claimed in the county court that her suspension had been a repudiatory breach of the implied term of trust and confidence.

The court held that the Council was “bound” to suspend Ms Agoreyo in light of the allegations and that, as there had been reasonable and proper cause to suspend her, there was no breach alleged breach of contract.  When she appealed, the High Court allowed her appeal on the basis that suspension was not “reasonable and/or necessary”.  They also found that the Council had adopted suspension as a “default position” and it was “largely a knee-jerk reaction”.

On further appeal by the council, the Court of Appeal held that the High Court should not have interfered with the county court’s findings of fact.  Ms Agoreyo had accepted that the allegations against her were serious and needed to be investigated.  In light of the Council’s duty to safeguard the wellbeing of young children, the county court was entitled to find that they had reasonable and proper cause to suspend.

The Court of Appeal also held that although suspension, by itself or when taken with other circumstances, could amount to a breach of the implied term, it is not necessary to consider whether suspension was “necessary”.  That is not the correct test.  Therefore, when considering whether to suspend, always consider the potential consequences of not suspending (such as interference with witnesses or the risk of further harm or damage) in order to establish reasonable and proper cause.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update.

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