NI Blog: Suspension may not always be found to be a neutral act
Employment solicitor Katie Buchanan of Worthingtons Solicitors in Belfast writes on a recent employment case in the High Court of England and Wales.
In the case of Agoreyo v London Borough of Lambeth EWHC 2019 (QB) the High Court held that the suspension of a teacher was a fundamental breach of the implied term of trust and confidence, which entitled Ms Agoreyo to resign and consider herself constructively dismissed.
Ms Agoreyo was a primary school teacher to a class of 5 and 6 year olds. Two of these children had behavioural difficulties and allegations were made against Ms Agoreyo that she had used unreasonable force towards these children on three occasions in trying to remove them from the classroom. The Head teacher in the school had carried out an investigation into two of these alleged incidents and had found that Ms Agoreyo had used “reasonable force”.
Following a further incident, Ms Agoreyo was told that she was suspended. She immediately asked if she could resign. A letter of suspension stated that “suspension is a neutral act and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.” Ms Agoreyo, however, felt that her suspension was a breach of the implied term of trust and confidence and that such a suspension was not necessary to enable a fair investigation to be conducted.
Ms Agoreyo lost her breach of contract case in the County Court, who found that the school was “bound” to suspend her after receiving reports of the allegations against her and that suspension was necessary because of its overriding duty to protect the children pending a full investigation. Ms Agoreyo appealed to the High Court.
The High Court allowed her appeal. It found that suspension was not a neutral act and that it had inevitably cast a shadow over the employee’s competence. The High Court further held that the County Court had been wrong to find that the employer was “bound” to suspend her. It should not have discounted the Head’s previous investigation which found that reasonable force had been used. In addition, suspension could not be justified on the basis of the overriding duty to protect children as this was not the reason given for the suspension – the original reason given was to allow an investigation to be conducted fairly.
The High Court was also critical of the procedure adopted by the school including that there had been no attempt to ascertain Ms Agoreyo’s version of events prior to suspension, no apparent consideration of alternatives to suspension and no explanation in the suspension letter as to why an investigation could not be conducted fairly without the need for suspension. The Court found that these factors were suggestive that suspension was adopted as the “default position” and was “largely a knee-jerk reaction” to remove Ms Agoreyo from the workplace. Suspension in this context was sufficient to amount to a repudiatory breach of the implied term of trust and confidence, which entitled Ms Agoreyo to resign and treat herself as constructively dismissed.
A key consideration for the High Court in this case was whether it was reasonable or necessary to suspend Ms Agoreyo to allow an investigation to take place – the High Court finding that, on this occasion, suspension was not a necessary step for the employer to take.
Whilst this case appears to have turned on the specific facts, it does serve as a useful reminder to employers to take due care and consideration when deciding whether to suspend an employee while investigating their alleged misconduct, and that suspension should be a last resort only where there is no other reasonable alternative. It should not be a “knee-jerk reaction”. The Court made particular reference to the fact that Ms Agoreyo was a professional personal in a vocation, and attached some weight to the impact that suspension may have on Ms Agoreyo’s career and any potential ensuing reputational damage. This consideration could also apply equally to the suspension of other professional persons, such as doctors, accountants etc. If an employer does decide to suspend an employee, it is advisable that they should keep well documented records detailing the reasons for any suspension, any opportunities given to the employee to provide their version of events, what alternatives to suspension were considered and why these were not considered appropriate in the circumstances of the particular case.
- Katie Buchanan is a solicitor in the employment law department in Worthingtons Solicitors.