Why HR should take care when suspending employees

A recent Court of Appeal judgment provides a warning to employers considering a knee-jerk suspension, as Jennifer Linford explains

Why HR should take care when suspending employees

The Court of Appeal’s ruling in London Borough of Lambeth v Agoreyo stresses that employers must consider the principles of trust and confidence when suspending an employee on the grounds of misconduct, or face the possibility of further legal action.

The London Borough of Lambeth suspended a primary school teacher for ‘serious misconduct’. During her first few weeks in her role, Simone Agoreyo, who taught five and six-year-old children, was seen to have used force to remove two children with behavioural issues from the classroom. She was suspended for ‘serious misconduct’ and resigned the same day.

Agoreyo began proceedings against Lambeth for breach of contract, arguing that she had been entitled to resign as a response to its repudiatory breach of contract. The London Borough of Lambeth won the case in the county court, but lost on appeal at the High Court. However, the Court of Appeal overturned the High Court’s decision on appeal, finding that her suspension was not a repudiatory breach of the implied term of mutual trust and confidence.

The case is a reminder for employers to always apply the principle of reasonableness. The reasonableness, or otherwise, of an employer’s decision to suspend should be assessed on a case-by-case basis and questions must be asked as to whether the suspension is likely to breach the implied term of trust and confidence.

The ability to suspend an employee can be an extremely valuable tool for an employer. A period of suspension may enable the employer to gain some control, press pause and allow the dust to settle to enable a fair and proper investigation to be carried out.

However, despite it not, on the face of things, being a disciplinary step per se, choosing to suspend an employee suspected of serious misconduct should be a last resort and is only reasonable and necessary in the event that no other option is suitable.

Suspension should not be used as a form of discipline or sanction. The importance of refraining from this type of knee-jerk reaction was emphasised by the Court of Appeal in this case, and employers should take note.

To ascertain whether the suspension is necessary and appropriate, employers should first consider several factors. They should take time to consider: carrying out a full and proper investigation while the employee remains at work; if there is a potential threat to the business and/or other employees; and whether the employment relationship has suffered a material breakdown.

Employers should also look at other options that could be a more suitable alternative to suspending an employee, such as allowing them to work from home, changing their hours, restricting their duties, placing them under supervision or moving them to a different location in the workplace.

After careful consideration, if suspension is deemed the best, most appropriate, step, the employee must be given a suspension letter, which must contain certain details, including an explanation as to why they are being suspended; an estimate as to how long the period of suspension will last; who their point of contact is during the suspension; and a reminder that the suspension is not an assumption of guilt but rather to ensure that a fair and proper investigation is carried out.

It is also important to remember the three key principles as set out in the Acas code of practice on disciplinary and grievance procedures, which underpin the fairness and reasonableness of suspension. These principles are:

  • the duration of a period of suspension should be as brief as possible;
  • the appropriateness of the suspension should be kept under review; and
  • it should be communicated to the employee that their suspension does not amount to disciplinary action.

Jennifer Linford is a solicitor advocate and employment law expert at Lodders