Suspend in haste; repent at leisure? The need for employers to justify suspension of employees

Employers routinely suspend employees when investigating allegations of misconduct, and usually for entirely understandable reasons.

Whether it is to safeguard potential evidence, limit any potential further misconduct or to protect witnesses, employers often view suspension as an almost routine part of the disciplinary process.

However, there have been a number of cases within the employment tribunals in which employers suspended employees without due consideration of the circumstances, almost as a matter of routine, and which has led to judicial criticism as well as findings of unfair dismissal.

Is suspension a ‘neutral act’ in disciplinary matters?

Suspension is usually justified and explained by employers as a “neutral act”, which does not imply any guilt. The case of Agoreyo v London Borough of Lambeth shows that this is not necessarily how the courts will view it. Although it should be noted that this was a case before the High Court in England and not the employment tribunal, it still highlights that suspension should not be thought of as a matter of routine.

This case involved Ms Agoreyo, who began work as a teacher in November 2012 at a primary school in Lambeth. In her class, there were two particularly troublesome children. Ms Agoreyo did bring this to the school’s attention and it had been previously noted by the school.

Within a month of her starting, the school became aware that Ms Agoreyo had to use a degree of force to secure behavioural compliance of these children, including allegedly dragging one of them down a corridor. The school suspended Ms Agoreyo. The letter of suspension stated that “the suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly”.

Most employers will no doubt be familiar with letters of this type and have issued letters in similar terms. This letter, though, came in for severe criticism in this case. The High Court stated “the view of the courts” is that suspension is not a neutral act, with reference to case law. Suspension, rather, interrupts the status quo and casts a shadow over the employee.

The High Court also attacked (i) the letter being dated the day decision to suspend was taken; (ii) there being no indication of who made the decision to suspend; (iii) there being no reference to Ms Agoreyo’s version of events made; (iv) there being no reference to any consideration of an alternative to suspension; and (v) there being no explanation as to why suspension was required to allow the investigation to be conducted fairly, as asserted within the letter.

It seems that a standard letter was issued and it did not stand up to judicial scrutiny. The High Court held that Ms Agoreyo – who resigned after the letter was issued to her – had been constructively dismissed as a result of conduct by the employer that is likely to destroy or damage the relationship of trust and confidence between the employer and employee. The suspension itself was sufficient to do this.

The need to justify suspension

Although many employees are unlikely to resign and claim constructive dismissal as a result of suspension, a judgement such as this reminds employers that allegations of misconduct – even gross misconduct – may not justify suspending an employee.

Due consideration of the individual circumstances, in the knowledge that suspension itself has a damaging effect on the employment relationship, must be given and an employer should be prepared to justify the reason for suspension.

Get in touch

If you’d like to discuss the issues that arose in this case or your disciplinary policy and practice, then get in touch with one of our employment team.

• Scott Milligan   |   0141 227 9408