A recent case shows that immediately suspending an employee accused of serious misconduct can land an employer in court if it proves to be unjustified

The case of Agoreyo v London Borough of Lambeth is a pertinent example of why it is important to pause before rushing into a decision regarding suspension, whatever the allegation.

Ms Agoreyo, a teacher, was accused of three instances of using unreasonable force towards two children in her class, who were known to exhibit challenging behaviour.

The head teacher investigated at least two of the allegations and concluded that she had used no more than reasonable force. However, Agoreyo was then suspended by the executive head. A letter was sent to Agoreyo, which stated that the suspension was a 'neutral act' and not a disciplinary sanction. It also indicated that the purpose of the suspension was to allow an investigation to be conducted fairly.

Agoreyo brought a claim in the county court for damages for breach of contract, arguing that, in suspending her, the council had breached the implied term of mutual trust and confidence. Although the claim was initially unsuccessful, the teacher won her case on appeal. The High Court made several criticisms of the council’s handling of the case, including:

  • Agoreyo was not asked for her version of events before being suspended;

  • the head teacher’s initial investigation concluding that the previous allegations were unfounded was overlooked;

  • no alternatives to suspension were considered; and

  • no explanation was given as to why an investigation could not be carried out fairly without Agoreyo being suspended.

As a result, the High Court held that Agoreyo’s suspension was largely a knee-jerk reaction and, therefore, amounted to a breach of trust and confidence. It confirmed the view expressed in previous cases that suspension is not a neutral act and should not be considered a 'routine response' to the need to investigate.

Lessons from Agoreyo

This decision is a reminder that employers must give careful thought to a decision to suspend. Failure to do so might lead to a claim of constructive dismissal, which would be especially difficult to defend in light of the Agoreyo case.

HR managers can mitigate this risk by ensuring the following points are considered in deciding whether or not suspension is necessary:

  • Would the employee’s presence impede an investigation?

  • Is there a risk of the employee interfering with witnesses or evidence?

  • Is there a risk to the safety of other staff, customers or service users?

  • Are there suitable alternatives?

  • Is suspension reasonable in the circumstances?

That is not to say that suspension should be avoided at all costs. It is important not to lose sight of the nature of the allegations against the employee – there will be cases where suspension is clearly necessary. However, caution must be exercised to ensure that it is not the default position, even in cases involving potential gross misconduct, and all circumstances should be taken into account.

Having an express right to suspend in the employee's contract is helpful but does not allow managers to sidestep a detailed consideration of whether it is appropriate in the particular case. HR professionals can also minimise risk by ensuring the letter of suspension explains why it is necessary, so it is clear that the decision has been carefully thought through. The days of simply saying that suspension implies no criticism of the employee have gone for good.

Laura Morrison is a lawyer in the employment, pensions and immigration practice at Maclay Murray & Spens