Right to Suspend

Posted Friday 21st June 2019

Where an employee is accused of serious misconduct, employers may be tempted to suspend the person in question whilst deciding what to do next. Suspension can be a useful tool where an investigation is required and in circumstances where relationships have broken down or the employee poses a potential threat to the business or its employees.

However, employers must think carefully before opting to suspend as there is a danger that in doing so the employer might give the impression of having already made a judgement on the issue. If the employee does return to work, the suspension may well have harmed their reputation amongst colleagues and make them feel that their position is untenable.

Employers are subject to an implied term of trust and confidence towards their employees. In the context of suspension, this means that an employer must act reasonably. If suspension is not a reasonable course of action, it could be argued that doing so would represent a breach of the implied term of trust and confidence, thereby exposing the employer to a claim for breach of contract.

London Borough of Lambeth v Agoreyo

In determining whether suspension represents a breach of trust and confidence by the employer, courts and tribunals have previously considered whether suspension is a ‘neutral act’ which does not imply guilt. The argument that has been put before courts and tribunals is that where, on the facts, suspension is considered a neutral act, there can be no breach of trust or confidence.

The Court of Appeal considered this question in the recent case of Mayor of Burgesses of the London Borough of Lambeth v Agoreyo, in which a teacher was suspended following allegations of using unreasonable force against two children. In light of the allegations, Ms Agoreyo received a letter suspending her which stated, “suspension is a neutral action and is not a disciplinary sanction.”

The High Court had previously considered whether the suspension was indeed neutral, and found that it was not. It determined that the suspension was a knee-jerk reaction, was not a neutral act and therefore constituted a repudiatory breach of contract.

On appeal, the Court of Appeal suggested that the question of whether suspension was a neutral act was not relevant to determining whether there was a breach of trust and confidence. It overturned the High Court decision and in doing so found that the school had reasonable and proper cause for suspending the teacher in order to investigate the allegations. Ultimately, the important question for employers to ask themselves is whether suspension is reasonable and proper in all the circumstances i.e. not whether to do so would be a neutral act.

What do employers need to do?

Although the Court of Appeal eventually found in favour of the employer, the Agoreyo case highlights to potential dangers of choosing to suspend an employee; such an act can cast doubt on the individual’s innocence, suggest that any future decision has already been determined, and ultimately give rise to a claim that the employer is in repudiatory breach of contract. Employers must consider:

• is suspension a knee-jerk reaction?
• is suspension absolutely necessary to facilitate a proper investigation?
• has the employee in question been given the chance to offer their version of events prior to suspension?
• are there any alternatives?

ACAS guidance suggests several alternatives to suspension which employers might consider whilst investigating allegations of misconduct:

• moving the employee to a different area of the workplace
• requiring the employee to work from home
• temporarily restricting the employee’s duties
• supervising the employee
• transferring the employee to a different role within the business

Suspension must not be used as a form of disciplinary action; it should be used to facilitate an investigation and not as a form of punishment. Suspension must therefore be handled sensitively to ensure that the employee and their colleagues understand this.

Further, an employer must have a right to suspend. An employment contract might expressly provide such a right. If there is no express right, the employer may still be able to suspend in reliance on an implied right to do so but advice should be taken before doing so.

What is the procedure?

If it is established that suspension is the only reasonable course of action, an employer must be careful to handle the process properly. Each scenario will be fact specific, however there are some general points to bear in mind:

• Suspension should be for as short a period as possible
• Keep the decision to suspend under review so that the employee can be brought back to work at the earliest appropriate opportunity
• Inform the employee as soon as possible
• Confirm the suspension in writing, setting out the employee’s rights, the reasoning behind the decision and providing a point of contact for the period of suspension

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This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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