Suspension is a neutral act – true or false?

By Angela Gorton, employment director at Lupton Fawcett

Angela Gorton

A recent High Court decision casts doubt over the use of suspension in disciplinary proceedings.  Given suspension of an employee is a relatively common occurrence, the case highlights the need for caution by managers tasked with making such decisions.

In Agoreyo v London Borough of Lambeth, a teacher with 15 years’ experience started work for a primary school.  Five weeks later, she was suspended following her treatment of two children in her class who had behavioural difficulties.  On two occasions she dragged a child along the floor, and on another she picked up a child and carried him kicking and screaming out of the class room in front of the other pupils.

The teacher was suspended on full pay.  The letter of suspension stated: “The suspension is a neutral action and is not a disciplinary sanction.  The purpose of the suspension is to allow the investigation to be conducted fairly.”  She resigned and brought legal proceedings.

The judge took the view that the suspension was not a neutral act.  He quoted an earlier case on suspension:

“Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence.”

He also criticised the manner of the suspension as being a “knee-jerk” reaction.  He noted that no attempt was made to ascertain the teacher’s version of events, that no consideration appeared to have been given to an alternative to suspension, and that the letter did not explain why the investigation could not be conducted fairly without the need for suspension.  In those circumstances, the judge considered that the suspension was sufficient to breach the implied term in the contract of employment relating to trust and confidence.  This meant that the teacher could resign in response to that breach and claim constructive dismissal.

The judge also observed that the protection of the children was not the reason given for the suspension.  If it had been thought necessary to suspend the teacher for child protection reasons, then the outcome of this case may well have been different.

Employers must now think carefully before suspending an employee in a misconduct situation.  In particular, consideration should be given to why the suspension is necessary, and whether the employee could instead be moved into a different role temporarily whilst the investigation is completed.  Stating in the suspension letter that suspension is a neutral act and does not imply any criticism of the employee is not sufficient. The reasons for the suspension need to be well thought out, justified and explained.

For further help or advice, please contact Angela Gorton on 0113 2802026 or angela.gorton@luptonfawcett.law.