When suspension can amount to breach of contract

Introduction

During an investigation into misconduct an employer may deem it necessary to suspend the employee pending investigation. This can sometimes be deemed necessary in a case where they believe the employee continuing to be in the workplace may tarnish the investigation, for example there may be concerns that the employee under investigation will try to influence a colleague’s statement.

While some employers may see suspension as a neutral act to allow them to investigate, this is not always the legal viewpoint as was demonstrated in the case of Agoreyo v London Borough of Lambeth (2017) EWHC 2019 (QB).

What happened in this case?

• Mrs Agoreyo (Mrs A) was employed by London Borough of Lambeth as a primary school teacher in November 2012.
• Mrs A was an experienced teacher and was given the responsibility of teaching a class of 29 five and six year old children, two of whom had behaviour difficulties.
• Mrs A had not received training on how to cope with children with behaviour difficulties.
• She requested training and support from the school to help her cope with the children, which the school eventually acknowledged.
• Several weeks into her employment with the school and only a few days after the implementation of additional support, Mrs A was suspended from the school pending investigation for allegations of using physical measures on three occasions to control the two children with behaviour difficulties.
• Mrs A was informed by the school that the suspension was a neutral act and that she was to be suspended to allow the investigation to be conducted fairly, which was confirmed in writing.
• Prior to her suspension, Mrs A was not asked for a response on the allegations and there was no evidence to suggest that her employers had considered other alternatives to suspension.
• Mrs A resigned as a result of being suspended.
• She raised a claim in the County Court for breach of contract.
• She claimed the suspension was not reasonable or necessary.

County Court decision

The County court dismissed the claim. They held that Mrs A’s employers were bound to suspend her following the allegations made against her and that the suspension was reasonable because Lambeth had an overriding duty to protect the children.

Mrs A appealed to the High Court.

High Court decision

The High Court allowed the appeal, finding in favour of Mrs A.

They held that the County Court had erred in stating that Lambeth were bound to suspend the employee. This indicated that they had no other choice but no further explanation was provided as to why they had no other choice.

The County Court had erred in stating that the decision to suspend was reasonable due to the overriding duty to protect the children. Lambeth had explained in their letter of suspension that the reason for the suspension was to allow the investigation to be carried out fairly, not to protect the children.

They held that suspension was not a neutral act. The employers had not asked Mrs A for her comments on the allegations before suspending her, they had not considered alternatives to suspension and there was no explanation in their letter of suspension as to why the investigation could not be carried out fairly without suspending Mrs A.

The employers’ actions were held to amount to a repudiatory breach of the implied term of mutual trust and confidence contained within the employment contract. There was also a further breach caused by the fact that Mrs A was suspended when the supportive measures promised by the school had only just been introduced a few days before and had not been fully implemented.

The Court held that the suspension carried a reputational risk for Mrs A which could potentially impact her future career.

Mrs A’s resignation therefore amounted to constructive dismissal.

Case comment

This case is a warning to employers when considering suspending an employee pending investigation. The matter should be thoroughly thought out and suspension should not simply be a knee jerk reaction even in the event that the allegations are for serious misconduct.  Employers should consider the following points before reaching a decision:

• Is the suspension reasonable and necessary?
• Has the employee under investigation been asked for her or his comments to the allegations prior to the suspension?
• Have the employers considered alternative possibilities other than suspension?
• Have the employers explained in the letter of suspension why the suspension is necessary?
• Is there a clause in the employee’s contract or staff handbook allowing the employer to suspend the employee?

If the employers have considered the matter fully and decided the suspension is necessary, the employee should not be suspended any longer than necessary and the matter should be kept under continual review. The employee should of course also be receiving full pay during the period of suspension.

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Note: This article was originally published on the Moray Employment Law website in November 2017.