When is it appropriate to suspend an employee?

1 April, 2019

When allegations of misconduct are raised, often the initial instinct of employers is to suspend the employee pending the outcome of formal investigations and any subsequent disciplinary proceedings. However, such a decision should not be taken lightly or without careful consideration as it involves significant legal risks and practical implications. The employer must have reasonable and proper cause to suspend, otherwise it will be acting in breach of contract and facing the risk of constructive dismissal claims if the employee then resigns.

While the employee should not see the act of suspension as an assumption of guilt or a disciplinary sanction, the employer should view suspension as a “neutral act” (as it is often described in disciplinary policies). Suspension inevitably casts a shadow over the employee’s competence and suitability to continue in their employment. It is also rare to see an employee returning after a period of suspension to a positive and lasting working relationship.

In the recent case of Mayor and Burgesses of the London Borough of Lambeth v Agoreyo, the Court of Appeal reviewed the principles surrounding the suspension of employees and provided employers with some helpful guidance.

The facts

This case concerned an experienced teacher who taught Year 2 children at a primary school in London.  After two teaching assistants alleged that she had used excessive force on three occasions against two children, the teacher was suspended pending a formal misconduct investigation.  The allegations included dragging a child along the floor and picking up a child in a forceful manner. Following her suspension, the teacher resigned that same day.

The teacher brought a damages claim against the school, asserting a repudiatory breach of her employment contract in respect of the implied term of trust and confidence. She argued that suspension was not reasonable or necessary for the investigation of the allegations against her.

The decision

The Court had to determine whether or not the school acted in repudiatory breach of the implied term of trust and confidence in respect of the teacher’s contract of employment. This assessment required an evaluation of the facts and context of the case.

The Court said that it was obvious that the allegations of misconduct were serious and needed to be investigated. Therefore, with specific reference to the context of the case, namely that the interests of young children needed to be safeguarded, the employer did indeed have reasonable and proper cause to suspend the teacher.

Furthermore, the Court of Appeal found that the High Court had used an incorrect test when it had considered whether or not it had been “necessary” to suspend the teacher.  The correct test should have instead been to consider whether the school had “reasonable and proper cause” to suspend the teacher in the circumstances. The original decision that the school had not breached the terms of the employment contract was restored.

Further thoughts

The Court of Appeal’s judgment provides welcome guidance for employers, particularly following the clarification that suspension does not need to meet a threshold of “necessity”.

The case serves as a useful reminder that proper care and reasoning should always be applied when considering whether or not to suspend an employee, and the employee needs to justify any suspension with specific reference to the facts and context of the case. Suspension must not be the default approach or decided as a “knee-jerk” reaction.

The rationale for suspension may derive from the gravity of the allegations, particularly where the alleged conduct conflicts with the employer’s responsibilities to other parties or presents other risks. In some cases suspension may be justified by the need to prevent witnesses being pressurised or evidence being tampered with.

Unless the employer has proper cause to suspend, it should be able to carry on its investigations into the matter whilst the employee carries on with their day-to-day role and responsibilities.  Alternative solutions, such as working under supervision or changing the employee’s working hours, should also be considered.

In addition, as the ACAS Code advises, any period of suspension should be as brief as possible and should be kept under review. In another case reported this month, Uwalaka v Southern Health Foundation NHS Trust, the Employment Appeal Tribunal was highly critical of an employer which had failed to conclude its investigation and lift its suspension of an agency worker working in the NHS nearly three years after he was originally suspended.

Please contact our Employment team if you require any guidance or support on these issues. For our updates and the latest employment news, please follow us on Twitter @CrippsEmpLaw