When is Suspension Safe?

In the latest video series of 'Back to Basics' Jonathan Simpson, Associate at A&L Goodbody discusses the lead up and implications of suspending an employee and answers the question 'When is Suspension Safe?'.

Transcript

The suspension of an employee is a relatively common step taken by employers when dealing with a disciplinary process. Employers will frequently justify it on the basis that it's a precautionary step required in order to avoid interference with the process, whereas employees will often feel that it's not a neutral act and actually prejudices them.

The Court of Appeal has recently weighed in on the issue in the case of Agoreyo and London Borough of Lambeth.

Background to the Claim

The High Court in this case had determined that suspension was in fact not a neutral act and instead amount to a repudiatory breach of the implied term of trust and confidence.

In this case, a teacher was accused of using unreasonable force against a pupil on at least three separate occasions. Before it carried out an investigation, the employer suspended the teacher, and the teacher resigned on the same day. The employee issued a County Court claim. And the County Court held that the school had reasonable and proper cause for suspension, in particular given the fact that it had an overriding duty to protect children.

The High Court then disagreed and held that the suspension was a knee-jerk reaction and was not a neutral act. The suspension was therefore held to be a breach of the implied term of trust and confidence, because it had not been reasonable and/or necessary for the employee to be suspended pending the conclusion of the investigation.

Court of Appeal Decision

The Court of Appeal held that the judge at first instance [in the county court] was entitled to find as he did on the evidence in front of him. While suspension could be conduct that constitutes a repudiatory breach of contract, there was no test of necessity in determining whether an employer is entitled to suspend or not. The Court of Appeal also found that the question of whether suspension is a neutral act was not relevant or particularly helpful in the case. The key question is therefore whether there was a reasonable and proper cause for suspension.

Notwithstanding the reversal of the High Court decision, there remain a number of steps that employers should take in order to ensure that they don't incur risk when suspending an employee. They should check if there's a term in the contract of employment or in the handbook or policy that permits suspension when carrying out an investigation. They should also document the reasons for the suspension, including why it's considered reasonable.

Alternatives to Suspension

Alternatives to suspension can also be considered, such as redeployment to a different role for a period of time. It will remain important to keep the period of suspension to a minimum and to communicate with the employee to keep them up to date as the investigation progresses.

Ultimately, the decision is for an employer to weigh up which risk they prefer to take, having the suspended employee claiming a breach of the implied term of trust and confidence due to the suspension, or any risk in allowing them to remain in their post while the investigation takes place. The risk attached to suspending an employee is perhaps reduced in light of the most recent Court of Appeal decision.

The steps I've outlined should allow an employer to be able to proceed to suspend an employee with minimum risk, should they wish to do so. If you have any questions, please don't hesitate to contact the team at A&L Goodbody.

Case review can be found here:

London Borough of Lambeth v Agoreyo [2019]