Suspending an employee unnecessarily can be a repudiatory breach of contract
The term of mutual trust and confidence is implied into all contracts of employment. This effectively means that an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between itself and its employee.
In instances of gross misconduct, an employer may wish to suspend the employee who is being investigated. This may be appropriate, for example, where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work (because, for example, the employee concerned may try to influence witnesses or destroy evidence).
Facts of the case
The claimant was Ms Agoreyo. She was employed as a primary school teacher by the London Borough of Lambeth (LBL).
Ms Agoreyo was an experienced teacher and two children in her class exhibited extremely challenging behaviour. Ms Agoreyo made numerous requests to the school for additional support which was eventually acknowledged by the school. The school started to put in place supportive measures for Ms Agoreyo but these were not fully in implemented by the time she was suspended (see below).
Five weeks into her employment, Ms Agoreyo was suspended from work following allegations that she had used unreasonable force towards the two earlier mentioned children on three occasions. She was told that the purpose of the suspension was to "allow the investigation to be conducted fairly" and that it was a "neutral action". This was confirmed in writing to her and the said letter also included the other usual things such as:
- She was suspended on normal pay; and
- It was a precautionary act pending a full investigation into allegations, during which she would be given full opportunity to provide her account of events.
However, prior to the decision to suspend, Ms Agoreyo was not asked for her comments on the allegations, nor did LBL provide any evidence to suggest that it had considered other alternatives to suspension.
Later that same day, Ms Agoreyo resigned. She later brought a claim against LBL in the County Court for breach of contract and argued that suspension was not reasonable or necessary in order for the investigation to take place.
County Court decision
The County Court held that LBL was “bound” to suspend Ms Agoreyo after receiving reports of the allegations against her. She then appealed to the High Court.
High Court decision
The High Court allowed the appeal and held that:
The County Court had erred in holding that LBL was “bound” to suspend Ms Agoreyo. The use of the word "bound" indicated that the Court considered there was no alternative to suspension, although no express reasons for such a finding were given in the judgment.
The County Court had also erred in finding that Lambeth had "reasonable and proper cause" to suspend Ms Agoreyo on grounds of its overriding duty to protect children. LBL had clearly stated to Ms Agoreyo in writing that the purpose of the suspension was not to protect children but to ensure a fair investigation.
- The procedure used by LBL to suspend the claimant was incorrect. The High Court found that:
- There was no evidence of any attempt to ascertain Ms Agoreyo’s version of events prior to the decision to suspend
- There was no evidence of any consideration of alternatives to suspension
- The letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension.
In summary, the High Court held in favour of Ms Agoreyo. It found that LBL had adopted suspension as a default position and it was largely a knee-jerk reaction, which was sufficient to breach the implied duty of trust and confidence. It also held that, as suspension took place only a few days after additional supportive measures had been put in place (which, as mentioned earlier, had not been fully implemented), this also constituted a further repudiatory breach of contract by LBL.
The High Court was also influenced by the potential stigma associated with suspending a qualified professional (such as, in Ms Agoreyo’s case, a teacher) and the potential impact on her future career.
This case highlights the care an employer must take when considering suspending an employee, even in cases where the alleged conduct is very serious. It also highlights that suspension should not be a default position or a knee-jerk reaction and employers must follow a proper procedure when looking to suspend, particularly where the employee in question is a qualified professional.
The decision suggests that an employer should take the following steps when considering whether or not to suspend an employee:
- Speak to the individual prior to suspension and ask for their comments on the allegations against them.
- Carefully consider what the true purpose of the suspension would be.
- Consider whether there are any alternatives to suspension (such as reassignment) and whether suspension is necessary.
- Fully document the reasons for suspension in writing.
It would also help to include an express power to suspend employees in the employment contract/employee handbook. Although can employer will still need to think through whether there is proper cause to exercise that power, it will be easier to defend a suspension in reliance on an express power.
Please note this article is for information only and does not constitute advice. To ensure you follow best practice (and, if applicable, do not compromise your insurance), you should contact the Alcumus HR Consultancy team before embarking on any of the views given above.
Written by Anil Champaneri, HR Consultant