1st November 2017
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:
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:
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.