Suspension – a neutral act or a repudiatory breach?

How did we get here?

Around 17 years ago, in the case of Gogay v Hertfordshire County Council, the Court of Appeal highlighted the importance of employers considering alternative options before ultimately suspending an employee. The Court also found that using suspension as a 'knee-jerk' reaction constituted a breach of contract, and we have since seen a barrage of case law to support this.

Cases that demonstrate the increasing judicial scrutiny of suspensions include Campden & Islington Mental Health & Social Care, in which the EAT upheld constructive dismissal due to the employer not reviewing and lifting suspension at an appropriate time, and Crawford v Suffolk Mental Health Partnership, where the employer had been wrong to suspend employees with no previous disciplinary record.

What happened in Agoreyo?

In this case, experienced primary school teacher, Ms Agoreyo, had been suspended after allegations were raised that she had used unreasonable force on three occasions against a child in her class. Ms Agoreyo was notified that she was being suspended to enable a fair investigation, in response to which she resigned and later challenged the lawfulness of her suspension.

The County Court found that Lambeth was “bound” to suspend Ms Agoreyo on receiving reports of the allegations against her. The High Court, however, disagreed and said that the use of the word “bound” suggested that the Court considered there was no alternative to suspension. The County Court’s finding that Lambeth had reasonable and proper cause to suspend Ms Agoreyo on grounds of its overriding duty to protect children could not stand, given that the stated purpose of the suspension was not to protect children but to enable a fair investigation. The High Court Judge made various other criticisms of Lambeth’s procedures, including:

1. The employer’s reason for suspension (as set out in the written notification) was to enable the investigation to be conducted fairly, but the notification did not explain why an investigation could not be conducted fairly if Ms Agoreyo was not suspended.
2. Before the suspension, the accusations of Ms Agoreyo using unreasonable force against her students had been investigated by the Headmaster of the school and found to be unworthy of disciplinary action.
3. There was no evidence to suggest that the employer had given Ms Agoreyo the chance to answer the allegations, or explain her version of events.
4. It appeared that no alternative options to suspension had been considered.
5. Additional support measures to assist her in dealing with two children who were extremely difficult to manage had not been implemented.

The Judge found that on the basis of this background, suspension had been a “default position” and a “largely knee-jerk reaction” and therefore sufficient to breach the implied term of trust and confidence.

How does this apply to me?

This recent case illustrates the need to take great care when making decisions about suspending an employee, especially given the courts’ increased focus on ensuring a suspension is not a ‘knee-jerk’ reaction.

If you are considering suspending an employee, you should:

1. assess the facts on an individual basis and speak to the employee about the allegations before deciding to suspend them;
2. assess all possible alternatives beforehand;
3. consider what the purpose of the suspension is and why you could not achieve that purpose if the employee was not suspended (document the reasons carefully to provide evidence that it is not a default position);
4. consider whether there is an express right of suspension in the employee’s contract of employment, although bear in mind on each occasion whether you have good cause to exercise that power;
5. once suspended, keep the employee regularly updated about the progress of the investigation process; and
6. review whether the suspension remains appropriate on an ongoing basis. Even if suspension was originally deemed to be appropriate, a lengthy period of suspension may cause the employee damage and result in a claim of constructive dismissal or breach of trust and confidence.

Finally, it appears to be the case that suspension should be even more carefully considered when the behaviour in question is extremely serious or if you’re dealing with qualified professionals, such as teachers or medical professionals governed by external regulators, for whom the consequences could be career-ending. Employers may be more likely to suspend just because the employee is being accused of gross misconduct, rather than carefully and pro-actively considering the justification and any alternatives.

As always, seek legal advice if you are unsure about whether suspending is a good idea in all of the circumstances.