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Posted 6 September 2017
by Stephen Jennings

Case Update: A Lesson for Employers – Suspension for Misconduct is Not a Neutral Act



In the recent case of Agoreyo v London Borough of Lambeth, the High Court held that the suspension of a teacher to allow for a misconduct investigation was not a neutral act and amounted to a breach of the implied term of mutual trust and confidence.

The facts

Ms Agoreyo was a teacher in a primary school in the London Borough of Lambeth (‘Lambeth’). She taught a class of 29 five and six-year-olds, including two who exhibited extremely challenging behaviour. It was alleged that Ms Agoreyo had used unreasonable force against one of these children. Lambeth suspended Ms Agoreyo in light of these allegations to enable an investigation to be carried out. Ms Agoreyo resigned from her post, but challenged the lawfulness of her suspension. She did not argue that that the allegations against her should not be investigated, but that the suspension was unreasonable and unnecessary in order for the investigation to take place. The case was first heard before the County Court which found in favour of Lambeth. Ms Agoreyo appealed.

The decision

The High Court allowed the appeal. Lambeth argued that it had a proper reason to suspend Ms Agoreyo on the grounds of its overriding duty to protect children. However the High Court noted that this was not the reason for suspension given at the time – the suspension letter to Ms Agoreyo stated that the purpose of suspension was to ensure a fair investigation, not to protect children – and therefore found that this could not stand. The High Court was critical of the procedure followed by Lambeth – In particular, it noted that there was no evidence of any attempt to ascertain Ms Agoreyo’s version of events before the decision to suspend was made. No alternatives to the suspension were considered and the suspension letter to Ms Agoreyo did not explain why an investigation could not be conducted fairly without the need for suspension. The High Court held that the decision to suspend had been a “knee-jerk reaction” and was a breach of the implied term of trust and confidence.

What does this mean for you?

Although the High Court considered the statutory guidance for local authorities when determining this particular case, the decision confirms the position following similar cases that suspension is not a neutral act and serves as a reminder to all employers that care should be taken when considering whether to suspend an employee for misconduct. Even where the alleged misconduct is extremely serious, suspension should not be the default position. You need to be able to demonstrate that you have carefully considered the issue and come to a rational conclusion that suspension is reasonable in all the circumstances. In practice, this should be recorded in writing so that you can provide evidence to show that your decision to suspend was only made after careful consideration of all the facts, including whether there were any alternatives to suspension. It should be noted that in this particular case, Lambeth had written to Ms Agoreyo informing her of the suspension and specifically stating that suspension was a neutral act. This was disregarded by the High Court as irrelevant, the implication being that this statement in a suspension letter will not on its own be a successful defence to an argument that the decision to suspend was unlawful.

Tozers’ top tips

Here are our top tips for dealing with potential suspension situations:

  • Never automatically suspend an employee, even in the case of alleged serious misconduct.
  • Consider the facts of each case and ask yourself whether you are satisfied that you have reasonable grounds for the suspension.
  • Be clear as to what your reasons for suspension are – generally suspension will only be appropriate where there is an allegation of gross misconduct, the circumstances of which you consider make it inappropriate for the employee to remain at work, or where it is necessary in order to properly carry out a disciplinary investigation.
  • Clearly set out in writing your thought process and reasons for suspension and keep this on record.
  • Consider whether there are any alternatives to suspension – for example placing the employee temporarily in another part of the business or at a different location.
  • Explain to the employee in writing why you have made the decision to suspend.
  • Comply with your policies and procedures relating to suspension and ensure that these are applied consistently – for example if two employees are involved in an alleged misconduct incident you should not suspend only one of them without good reason.
  • Any period of suspension should be regularly reviewed to consider whether it should be lifted and the review outcome communicated to the employee. Do not continue the suspension indefinitely.

If you would like further advice you can contact our specialist employment team on 01392 207020 or e-mail employment@tozers.co.uk.

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About the author

Stephen Jennings

Partner

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients