How to suspend an employee lawfully
Often seen as a protective measure, suspension is primarily used by employers to carry out investigations into allegations of misconduct in instances where the employee’s continued presence may impede those investigations or pose a risk to the interests of the business, its customers or other employees. Suspension can also give the employer “breathing space” to decide how to deal with perceived misconduct.
Suspension has traditionally been considered as a “neutral step” that gives the employer the ability to remove an employee from the workplace whilst not affecting the employee’s rights under their contract of employment. However, a recent High Court decision suggests that this view is fraught with danger.
The New Risks Associated with Suspension
In Agoreyo v Lambeth London Borough Council  EWHC 2019 (QB), the Court confirmed that suspension is not a “neutral act” (especially in the case of a professional vocation) as it changes the status quo from work to no work and it inevitably casts a shadow over an employee’s competence.
In this case, Miss Agoreyo, a teacher with 15 years’ experience was suspended after serious allegations were made that she had used physical force against two children that exhibited challenging behaviour in her class. Without consulting Miss Agoreyo, the school suspended her, informing her of its decision and handing her a standard suspension letter. The suspension letter was couched in terms generally adopted by most employers i.e. that she was to receive normal pay, the suspension was a precautionary act pending a full investigation into the allegations and that the suspension would not constitute or form part of any disciplinary proceedings.
In response, Miss Agoreyo resigned on the same day and later issued a claim for breach of contract, arguing that suspension was not reasonable or necessary in order for any investigation into the allegations to take place.
Despite the claim failing at the first instance, the High Court allowed the appeal holding the Council to be in breach of contract as alternatives to suspension were open to the school and it failed to take into account Miss Agoreyo’s version of events. As a teacher, simply being suspended amidst allegations of abuse could have serious ramifications for her career yet the Council had made no initial enquiry into the veracity of the allegations before opting to remove her from her post (albeit temporarily).
As a result of this decision, the use of immediate suspension as a “knee-jerk” reaction to allegations of misconduct (no matter how well meaning) may now in itself be sufficient to breach the implied contractual term of trust and confidence between employer and employee. This term exists in every employment contract and essentially prevents the employer from enforcing contractual provisions on unreasonable grounds.
Even if an employer has an express contractual right to suspend an employee, the employer must only exercise that right on reasonable grounds and for no longer than is necessary.
Tips on Suspending Lawfully
In light of Agoreyo employers need to remain vigilant and carefully consider the purpose of a suspension (and whether any alternatives exisit) before “pulling the trigger” on suspension. The following steps will limit the potential for claims arising from a suspension and employers should:
- ensure that there is a contractual right to suspend the employee;
- ensure a consistent approach is adopted concerning suspension;
- conduct preliminary investigations – establish if there is evidence to substantiate the allegations and justify the suspension (including allowing the employee to provide a preliminary response to the allegations raised);
- ensuring any individuals who have the capacity to carry out a suspension have received proper training to do so;
- minimise the distress to the employee;
- meet with the employee to inform them of their suspension and explain details of the suspension and the procedure to be followed including possible outcomes;
- follow up the meeting with a formal letter of suspension confirming the above information;
- ensure suspension is always made with full pay;
- keep the length of suspension as brief as possible and under review;
- keep details of the suspension strictly confidential and on a “need to know” basis; and
- keep accurate written records of the reason for suspension, its duration and outcome.
Consequently, all employers are advised to review and update their suspension policy and make sure that their procedures for suspending employees under disciplinary investigation are fit for purpose.