Employers regularly suspend employees pending a disciplinary hearing, and most assume that if the employee is still in receipt of full pay during the suspension this is without risk.
However, the recent case of Agoreyo v London Borough of Lambeth highlighted that suspension cannot be considered a neutral act and that, in some cases, it could amount to a breach of the implied term of mutual trust and confidence. Ms Agoreyo, a teacher, was suspended following allegations of using force with two challenging children. The High Court held that this was a repudiatory breach of contract by the employer, entitling Agoreyo to resign.
So what do employers need to bear in mind now when considering suspending an employee?
Courts generally view suspension as casting a shadow over employees whether or not allegations are subsequently upheld – the old ‘there’s no smoke without fire’ problem. But suspension should not be a default option. It can be tempting to act quickly, particularly in sectors where there is a potential risk to vulnerable adults or children, but it is important that employers do not become over-cautious and suspend employees based on questionable allegations. Some investigation, including as a minimum getting the employee’s side of the story, should be conducted before considering suspension.
Employers then need to decide whether it is reasonable and/or necessary for the employee to be suspended. To do this employers will need to do/consider the following:
1. Can a fair investigation be carried out with them present in the business?
2. Is there a risk to the business in them remaining in work and having access to confidential information, or is there a risk to colleagues, clients or members of the public? If so, could other alternatives be considered to suspension? These could include a temporary transfer to another department, a period of leave or a change in reporting lines.
3. Is there a risk to the business of further harm, such as theft, in the interim? If so, could an alternative such as greater supervision be an option, pending the investigation?
If a decision is taken to suspend, this should be confirmed in writing to the employee, setting out who has made the decision, the fact that alternatives have been considered but disregarded for specified reasons, and the reasons why suspension is regarded as reasonable and necessary.
Lucy Gordon is a senior solicitor at ESP Law, provider of HR magazine’s HR Legal Service