Is a Suspension a Neutral Act?
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In many situations, the decision to suspend an employee in the event of misconduct is often the immediate reaction. However, the knee-jerk response may not be the appropriate one. Many suspension letters state that being suspended is not a presumption of guilt or punishment, yet the way it is handled could be seen as biased and ultimately not neutral. An example can be seen in the case of Agoreyo v London Borough of Lambeth.
Ms Agoreyo had worked with children who had additional needs, but she had not received any training when dealing with children who displayed behavioural and emotional difficulties. She had made numerous request for additional support because, in the large class of 5-6 year olds, two children had particularly challenging behaviour (who often became disruptive and violent).
She was suspended after it was reported that there had been three incidents of the same nature in a two week period, where she had used unreasonable force and ‘manhandled’ a child to remove them from the classroom. She received the suspension almost immediately, she subsequently resigned and brought a claim that challenges the lawfulness of the suspension.
Ms Agoreyo stated that there had been a breach of the implied term, trust and confidence. As a result, this gave her no other choice but to resign and therefore, it was a situation of constructive dismissal.
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The County Court
Ms Agoreyo’s claim against her employer was dismissed. The court held that her employer was entitled to suspend her because of the alleged incidents. Also, as the letter stated that it was a neutral act, there was nothing to suggest it was a disciplinary sanction.
It was also stated that her resignation was her way of her avoiding an investigation.
However, Ms Agoreyo appealed this decision.
The High Court
To determine whether the suspension was appropriate, the court considered;
- The decision to suspend and the suspension letter were written on the same day.
- It was not made clear to Ms Agoreyo who was involved in the decision to suspend her.
- The letter did not include Ms Agoreyo’s version of events.
- An explanation was not given as to why a fair investigation did not take place.
The judge also relied on Mezey v South West London & George’s Mental Health NHS Trust.
When a person in a particular profession is suspended, there is an automatic assumption that they were not competent and therefore it cannot be viewed as a neutral act. Suspension may cast a shadow on a professional reputation.
The court held that the suspension was a breach of the implied term, trust and confidence which is a fundamental aspect of any employment contract. The breach occurred not only because her employer had not considered options other than suspension, but also they have failed to implement the supportive measures to prevent the incidents from happening.
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What Does This Mean?
Ultimately, a suspension should be used as a last resort to an issue in the workplace. In Ms Agoreyo’s situation, no other sanctions had been considered and suspending her was the default. The initial reaction may be to suspend immediately, but this may be too severe, so it is essential to look at other options and conduct a fair investigation.
When an incident occurs, an employer should consider the following before suspending employees;
- Discuss the incident with the employee and ascertain their version of events. This gives you both a chance to discuss the allegations, and it gives them an opportunity to respond
- Consider appropriate alternatives to suspension for example, do they need additional training?
- Take into account the employees profession and status. Will this impact their professional reputation if they are suspended?
- Consider whether the suspension will cause issues surrounding mental wellbeing.
- If the suspension is necessary and the only option, make sure the letter thoroughly details the allegations and why the Company have made this decision (for example, the suspension is required to conduct a full and detailed investigation).
- Even if there is a contractual right to suspend, exercise care so that the implied term of trust and confidence is not breached.
- A knee-jerk reaction without full explanation could potentially expose the business to breach of contract claims.
About the author
James is on the Business Development & Account Management team at Neathouse Partners and regularly posts articles surrounding issues in HR & Employment Law, including case law & legislation updates. If you have a particular issue you would like addressed, feel free to drop James an email, and he will be happy to offer his assistance.
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