Suspending Employees (2): No, It’s Not A Neutral Act

Imagine you are an employee. You have been summoned to an unexpected meeting with HR and you have no idea why they want to see you. No sooner does the meeting start when you are told that you are going to be suspended pending a disciplinary investigation. You are handed a letter prepared in advance that describes the suspension as “precautionary” and “a neutral action”. Unless some long forgotten but undeniable misdemeanour has been found out at last, you are going to be hopping mad. Or deeply upset. Or both, especially if you are escorted from the premises with everyone looking on, or if the rumour mill kicks off as soon as your unexplained absence sinks in.

Now imagine you are the employer. You have some instinctive feeling that suspension must be the right step. Or indeed a necessary step. You might hope that it would help kick the can down the road if the investigation was going to be tricky. Or you might not like the soon to be suspended employee very much, and you might believe that this was a good way to hold the exit door open, especially if the hinges were greased with a severance package (hint, hint).

What does the law have to say about that?

In the recent case of Agoreyo v London Borough of Lambeth [2017] EWHC 2019, the judge decided that suspension breached the implied term of mutual trust and confidence. If Ms Agoreyo, a teacher in charge of children aged between 5 and 6, had had two years’ worth of qualifying service, she could have claimed constructive dismissal. It was alleged that she had used unreasonable force towards two children whose behaviour in class was “extremely challenging”. But this did not in its own right provide reasonable and proper cause for suspending her.

Having debunked the myth that suspension was a neutral action, and having emphasised that it was not to be imposed as a routine step pending fuller investigation, Foskett J was strongly critical of the pre-prepared letter of suspension, giving a number of reasons: (1) the decision to suspend had implicitly been taken when the letter was written, ahead of the meeting; (2) it did not indicate who had made the decision – it might not have been the officer handing the letter over; (3) it did not refer to any consideration being made of Ms Agoreyo’s version of events prior to the decision to suspend – a point not excusable simply because this was the first occasion when she was told of her employer’s concerns; (4) the letter did not say whether any alternative to suspension, such as a temporary transfer, might exist and if this had been considered; and (5) it was not explained why the investigation could not be conducted fairly without the need for suspension.

This does go quite a long way. If an employee suspended by way of knee jerk reaction was then dismissed, there would be good grounds to contend that the dismissal was inherently unfair because the suspension was a self serving act that effectively dictated the outcome. And if the employee decided that it was futile to await a foregone conclusion, and quit the job rather than awaiting this outcome, there could now be more scope to argue that mutual trust was broken and that constructive dismissal was proved.

Indeed, it was of no help to the employer in this case that Ms Agoreyo’s own immediate reaction was to offer to resign and then write a meek and submissive resignation letter. In effect, the court decided in the kindest possible way that she was not in her right mind at the time. The letter did not undermine her case about breach of mutual trust and confidence, nor did it demonstrate a voluntary desire to jump before she was pushed. She was struggling to cope with the unexpected bad news, and would hardly have been able to reach a fully considered response in that state.

What are the obvious practical lessons? If you are an employee taken aback with an unexpected and unjustified suspension, as you would have it, you may improve your position by seeking advice sooner rather than later. And if you are an employer contemplating a suspension, think long and hard about why it is justified, and do not rely on standard form suspension letters without good reason.

Please feel free to call us on 0121 777 0015 for any more detailed advice you think you may need.

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