Normally, employers consider suspension of employees where misconduct has occurred. However the recent case of Agoreyo v London Borough of Lambeth warns employers and advisers about the risks of suspending employees as a knee-jerk reaction to potential misconduct.
This was brought by a teacher Ms Agoreyo who used force to get the pupils to behave. In the suspension letter that she received from the school, the school described the suspension as a neutral act. The court determined that Ms Agoreyo’s suspension had repudiated the employment contract by breaching the implied duty of mutual trust and confidence. Before suspending Ms Agoreyo, the school should have spoken to her about what had occurred and asked her for her response to the allegation; given sufficient time for various teaching supports to be put in place, as had been discussed with her previously; and considered whether there were any appropriate alternatives to suspension.
This does not mean that suspension will not be considered reasonable, however it is for the employer to show that it has properly considered suspension and whether or not it can be justified. The Acas Code of Practice on Disciplinary and Grievance Procedures states that where suspension is considered necessary, the period of suspension should be as short as possible and be kept under review. In addition, the employer should make it clear that the suspension is not considered a disciplinary sanction. The employer should demonstrate that it turned its mind properly to whether suspension was justified in the particular case at hand.
Helpful tips for employers to consider before suspending an employee:
Consider alternative options to suspension including:
- Permitting employees to continue in their normal roles where this is compatible with the investigation.
- Assigning employees to a special project that will keep them away from the area under investigation.
- Having employees report into a different person, or having their direct reports assigned to someone else for a short period.
- Temporarily transferring employees to a different area of the business.
Alternatives that have been considered should be documented and employers should ensure that all employees are treated consistently when applying the disciplinary and grievance policies.
Investigate/make preliminary enquiries. Employers should try to establish some key facts without suspending employees. The employer should as the employees in question to put forward their side of the story. Conducting a limited investigation will not always be appropriate; for example, asking employees for their accounts of events may tip them off that their misconduct has been discovered and they may seek to destroy evidence.
Inform/discuss with the employee. The employer should notify the employee in writing and explain the decision to suspend along with confirmation as to the details of suspension (full pay, length etc), state that the suspension is not a disciplinary action in itself. Ensure that the employee remains informed by receiving regular updates.
Make the period of suspension as brief as possible, including by lining up the investigation team and arranging any witness interviews promptly.
Keep the suspension under review, asking itself at regular points during the investigation whether the original reasons for suspension still apply; for example, if the employer suspended the employee to ensure that documents were not tampered with, but is now confident that it has gathered all relevant documentary evidence, the employee may be able to return to work.
Employers should consider each of the points above carefully before taking action against an employee. This will ensure that employers are not faced with difficulties like in Agoreyo v London Borough of Lambeth whereby the employer was found to have breached the employees contract of employment, regardless of the employees actions.
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