Suspending an employee suspected of misconduct is not a neutral act. If mishandled, an individual will be able to resign and potentially claim constructive unfair dismissal. Agoreyo v London Borough of Lambeth provides a useful example of what should not be done when suspending a member of staff suspected of serious misconduct.
Ms Agoreyo was a teacher with 15 years’ experience. She started working for the school part way through term. Her class included two pupils aged 5-6 who had challenging behaviour and were difficult to control. There were recorded incidents of them swearing, screaming and spitting and being aggressive, particularly towards each other.
Ms Agoreyo had not been trained in how to deal with children with behavioural difficulties and spoke to the headteacher on a number of occasions asking for support. The head was sympathetic and agreed to put in place additional support to assist her. However, after just five weeks in post, and before the full support package had been implemented, Ms Agoreyo was suspended allegedly because she had used excessive force on three separate occasions against these two children. She immediately resigned and brought a breach of contract claim against the school on the basis that suspending her had breached the implied duty of trust and confidence between them.
The school did send a letter to Ms Agoreyo about the suspension but she did not receive this until
after her resignation. It included the usual sentiments familiar to HR: the suspension was a “precautionary” measure; it did not imply that she was guilty of the allegations and that she would be invited to an investigatory meeting. It also expressly stated that she had been suspended to enable the school to carry out its investigation fairly.
Ms Agoreyo had not worked for the local authority for the two years required to bring an unfair dismissal claim. She therefore brought proceedings for breach of contract in the civil courts. (Employment Tribunals can hear breach of contract claims arising on termination of employment but can only award damages of up to £25,000). It appears that Ms Agoreyo was seeking compensation in excess of this, plus recovery of her legal fees.
The initial Judge’s decision was that the school had been correct to suspend her because of its
“overriding duty to protect the children pending a full investigation of the allegations” – something the school had not relied on to justify the suspension. Ms Agoreyo did not accept this and appealed to the High Court.
The High Court Judge upheld her appeal agreeing that the decision to suspend her amounted to a fundamental breach of her contract entitling her to resign. The Judge was critical of the way the suspension was handled and the letter of suspension which followed it.
The decision maker was particularly criticised because he did not:
Speak to the headteacher about her knowledge of the situation. Had he done so, he would have discovered that the head had been aware of the incidents and had already looked into two of them, and had found that reasonable force had been applied.
Find out what support Ms Agoreyo had been provided (or not provided with). Had he done so, he would have discovered that she was struggling with these particular children, had spoken to the headteacher about this and that a detailed plan to support her had been formulated, but not fully implemented, at the time of her suspension and it had not been in place at all when the alleged incidents took place.
Ask Ms Agoreyo about the allegations to get her version of events; or
Consider any alternatives to suspension.
Lessons to be learnt
Employers must take care before suspending an employee suspected of misconduct. Anything that looks like a knee-jerk or automatic reaction will be criticised and is likely to result in a breach of trust and confidence, which may entitle the employee to resign with or without notice.
Before an employee is suspended an employer should:
Talk to them
before deciding what approach to take. Whilst a full investigation is not required before suspending someone, the employee’s views about the allegations may be a reasonable explanation or shed a different light on them, which militates against suspension. Consider what issues and evidence exist. Are there any obvious questions that the employee or others have not been asked which might clear the situation up?
Consider what will be gained by a suspension. This could reasonably be done if there are grounds to believe that he/she will tamper with evidence or try and influence witnesses. If that is not the case, there is no need to suspend in order to carry out a fair investigation. If the allegations suggest an individual is not fit to perform their job, then an employer should consider what other work they can do whilst the investigation is on-going.
Professionals will arguably suffer greater damage to their reputation than other workers. Employers will need to be particularly careful to deal fairly with anyone in this category.
If there is a decision to suspend:
An employee should be informed of the reasons for this and make sure that the letter confirming this is consistent with what the employer has communicated verbally.
To minimise reputational damage, employers should inform the employee what neutral message will be given to other staff or customers. A good option for both parties is to refer to the individual taking “personal leave” because it implies reasons which do not need prior notice or explanation.
The individual should only be suspended for as short a time as possible to allow for the investigation. Unless there is a clause in the employee’s contract allowing for suspension without pay, an employer must continue to pay the employee and allow him/her to enjoy any contractual benefits.
Published: 11 September 2017
Employment Law Update - September 2017
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