Suspension no longer a neutral act

For a long time, employers and advisers have trotted out the adage that suspension of an employee is “a neutral act”.

No longer.

In the recent case of Agoreyo v London Borough of Lambeth, the High Court allowed the employee’s appeal, finding that the Borough had breached its implied duty of trust and confidence to its employee by suspending her.

Ms Agoreyo was employed as a primary school teacher and she had some 15 years’ teaching experience. Five weeks after commencing employment with the Borough, she was suspended on the basis she had used unreasonable force on three occasions when dealing with two 5 and 6 year old children in her class of 29 children. She was informed that suspension was “a neutral action” intended to allow an investigation to be conducted fairly. She resigned in response to her suspension and subsequently brought a claim for breach of contract. The County Court found that the Borough was bound to suspend Ms Agoreyo in the light of the allegations brought against her and it was that decision that Ms Agoreyo appealed.

In allowing the appeal, the High Court took into consideration:

• the decision to suspend was taken and the suspension letter was written and issued to Ms Agoreyo on the day of the incident, indicating a lack of consideration and investigation on behalf of the employer;
• there was no clear identity of the person making the decision to suspend;
• Ms Agoreyo’s Line Manager had investigated at least two of the incidents previously and had found that they did not merit disciplinary action;
• following several requests for assistance, Ms Agoreyo was told that a support system would be implemented and she would receive the benefit of further induction sessions. These offers of assistance were communicated to her a mere few days prior to her suspension;
• there is no evidence indicating that Ms Agoreyo’s version of events had been taken into account prior to the decision to suspend her being taken;
• there was no evidence indicating that alternatives to suspension were explored;
• the letter to Ms Agoreyo stating that she was suspended in order for an investigation to be carried out fairly failed to explain why this was the case; and
• suspension is not a neutral act as it changes the status quo from work to no work, and casts a shadow over the employee’s competence.

Accordingly, suspension should be a last resort, employed only after other alternatives have been explored and found inadequate. It follows that where suspension is found to be the correct course, the reason and justification for the same should be recorded and communicated to the employee.

This decision presents another minefield for employers. Before suspending an employee, the employer should consider carefully whether there are any other reasonable options and ensure that there is a carefully documented decision making process.

If you have any further questions regarding this topic or any employment issues, please contact Rachel Harrap – Partner, or any member of the Edwin Coe Employment Team.

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