Suspension – a Neutral Act?
High Court judge has recently ruled that the suspension of a qualified teacher casts a shadow of doubt over the professional’s competence and cannot be considered neutral.
In the recent High Court appeal case of Agoreyo v London Borough of Lambert  the court considered whether an employer had breached the implied term of mutual trust and confidence in suspending a teacher who had used force with two students pending investigation into the disciplinary allegations.
Miss Agoreyo was employed as a year 2 teacher. During her employment there were three separate incidents over 3 weeks involving the use of force on two children, aged 5 and 6. She was suspended pending a disciplinary investigation. Miss Agoreyo resigned on the same day as her suspension.
The employer explained the suspension was a ‘precautionary suspension’ as per their disciplinary procedure pending a full investigation. The suspension letter stated that suspension was a neutral act and not a disciplinary sanction. It was merely to enable a fair investigation to be conducted.
Miss Agoreyo brought a claim for breach of contract, stating the suspension breached the implied term of trust and confidence owed to her by the employer. Upon first instance, the claim was dismissed, holding the employer was entitled to suspend her. Further, her friendly letter of resignation undermined her claim and highlighted a motive to avoid a full investigation. Miss Agoreyo appealed this decision.
Upon appeal, the court considered the following facts when assessing the appropriateness of the suspension:
• The suspension letter was written on the same day as the employer’s decision to suspend;
• It was not made clear who was involved in the decision to suspend;
• The letter did not take into account Miss Agoreyo’s version of events;
• No alternative action to suspension was considered;
• No explanation was given as to why a fair investigation could not take place without suspension.
The court held that suspension is not a neutral act. Relying upon the decision in Mezey v South West London & George’s Mental Health NHS Trust (2007) the judge reiterated that the suspension of a qualified professional casts a shadow of doubt over the employee’s competence and therefore cannot be considered neutral.
The employer’s suspension letter highlighted that no alternative to suspension was considered. No attempt was made to consider Miss Agoreyo’s view of the incidents and further the rationale of the decision to suspend was not fully explained. The employer used suspension as a default, knee-jerk reaction thereby breaching the implied term of trust and confidence.
Miss Agoreyo’s resignation did not negate or undermine her claim. Instead, together with the employer’s breach, this constituted a constructive dismissal.
Whilst this case highlights that suspension is not a neutral act, the judge confirmed that this does not mean suspension cannot be used. If considering suspending an employee, the following points should be noted:
• Sufficient time must be taken before suspending the employee
• Suspension of an employee should not be the default position
• Alternatives to suspension should be carefully considered and discussed
• The employee’s version of events should be taken into account before a decision to suspend is made
• If the employee is suspended, the rationale of the decision must be clearly explained to the employee
For more information on suspension please contact the Employment & HR team on 01768 800855 / 01228 552222 or by email to firstname.lastname@example.org
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.