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Farrer & Co | Suspension: not such a neutral act?

The Claimant in this case, Ms Agoreyo, was a primary school teacher who taught five and six year olds. Two of the children in her class exhibited very challenging behaviour, and she was accused of using excessive force in dealing with this. This would, of course, be an extremely serious matter if proven, with implications for the safety of children in her care and on the face of it suspension seems a reasonable response. However Ms Agoreyo resigned immediately following her suspension and the High Court has found on appeal that her suspension amounted to constructive dismissal (her case for breach of contract was brought in the County Court as she did not have the two years' service required to bring a constructive unfair dismissal claim in the Employment Tribunal – an interesting example of how employers are not totally immune in cases where employees do not have two years' service).

Integral to the High Court's reasoning was the feeling – which I share – that suspension inevitably runs the risk of damaging an employee's reputation even in circumstances where the allegations against them are not upheld. This is perhaps particularly true of professionals such as teachers in whom a particularly high degree of trust is placed, but employees in all roles are likely to feel that their reputation is at risk if they are suspended from work.

Further, Ms Agoreyo was accused of using excessive force on three occasions. However, two had been investigated by the school's head, who had found that she had acted appropriately. The executive head subsequently suspended Ms Agoreyo without discussing the matter with either Ms Agoreyo or the head who had looked into the first two incidents.

In addition, the reason for the suspension was not clear. The reason given in the suspension letter was to facilitate the investigation of the incidents. However in the County Court the Judge seems to have reached the view that it was to protect the children at the school. It is also relevant that in a school's context guidance exists which states that suspension should only be used as a last resort, and should not be an automatic reaction to serious allegations. All other options should be considered first.

Practical considerations

How, then, should an employer proceed when considering whether to suspend an employee?

  • First, take a step back and consider why it is necessary. Is it to prevent the employee from scuppering a fair investigation? If so, why is this thought to be a risk in this instance? Ensure you document your thought process. Above all else, avoid knee-jerk reactions.
  • Consider: are there any alternatives to suspension? For example, could the employee be moved into a different role / department while the investigation is carried out?
  • Speak to the employee before suspending. While it will not be appropriate to carry out a complete investigation before deciding whether or not to suspend, it may be that the employee has something to say which leads you to believe either that the allegations are clearly unfounded or that suspension is unnecessary.
  • Consider relevant contractual terms and policies and ensure that these are complied with. Remember also that pay and benefits must be maintained during suspension (although this will not usually be possible in relation to benefits which require attendance at the employer's premises).
  • While the suspension letter should state that suspension is a neutral act and implies no assumption of guilt, be aware that this is not sufficient to ensure that the decision to suspend will not be criticised, or even found to be a breach of contract, by a court or tribunal.
  • Ensure that any suspension is for no longer than is necessary, and is regularly reviewed.
  • Decide how the reasons for the employee's (often sudden) absence will be described to colleagues and potentially to other contacts such as clients, and ideally agree this with the member of staff. Making the suspension public will inevitably give rise to gossip and is counter to the general principle that disciplinary matters should be kept confidential, however, other staff will often see straight through statements about 'personal reasons' etc. Consider how best to protect the employee's reputation while maintaining as much integrity as possible in communications with the rest of the workforce.

However serious the allegations against an employee, a decision to suspend should be carefully thought through, both to protect the employer's legal position and to ensure that unnecessary damage is not done to the reputations of those involved.

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