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WHAT TO CONSIDER IF YOU WANT TO SUSPEND AN EMPLOYEE

10/10/2017

On 15th August 2017 the High Court heard the case of Agoreyo v London Borough of Lambeth. In this case, Ms Agoreyo was a primary school teacher who had been suspended following allegations that she had used excessive force towards two children in her class.

Ms Agoreyo was issued a letter of suspension which stated that suspension was "a neutral action" and "not a disciplinary sanction".  The letter confirmed that the suspension was to allow the investigation to be conducted fairly. However, Ms Agoreyo was not given the opportunity to respond to the allegations made against her, prior to the decision being made to suspend her.

Ms Agoreyo subsequently resigned the same day and brought a claim of breach of contract.  She did not argue that the allegations against her should be investigated, but that the suspension was not reasonable or necessary for the investigation to take place.

The High Court ruled that suspension, if not handled correctly, can amount to a fundamental breach of contract.  That can make it possible for an employee to resign in response and claim constructive dismissal, if they have the appropriate length of service.

As a result of this case employers need to ensure that, if they are going to suspend an employee due to alleged misconduct, they do not use suspension as a knee-jerk reaction and alternatives must be considered and fully documented.

To minimise the risk of an employer being faced with a potential breach of contract claim when suspending an employee, they should consider the following:

  • Does the contract of employment give you the right to suspend the employee? (if you have Practical HR contracts they will)
  • Speak with the employee regarding the allegations against them so that they can provide you with their initial response to the concerns.
  • Do you have enough evidence to suggest that the allegations are sufficiently credible to merit further investigation?
  • Is the suspension necessary?  Is it either to prevent further wrongdoing or to ensure a fair investigation?
  • If so, is there another position the employee can be temporarily transferred to in order to achieve the same objective?
  • If a decision is taken to suspend the employee, notify them what you will advise colleagues should enquiries be made about their whereabouts.

This case does not establish new law and there have been a number of recent cases where employers have committed a breach of contract when suspending an employee (particularly when the employee is a member of a profession, e.g. a teacher in this recent case).  However, it does remind us to think carefully as to whether it is really necessary to suspend an employee.

If you are faced with a situation that you believe is serious enough to consider suspending an employee and you wish to obtain further advice, then please call Practical HR on 01702 216573 or email fiona@practical-hr.co.uk


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