29 March 2019

When is it reasonable to suspend an employee?

There are circumstances in which it is appropriate and reasonable to suspend an employee pending an investigation. It is, however, important that a suspension is not a “knee jerk” reaction or a routine response to allegations of serious misconduct.

A term of mutual trust and confidence is implied into all employment contracts and an unjustified suspension could risk a breach of that term. The Court of Appeal, in the recent case of London Borough of Lambeth v Agoreyo, gave consideration to the extent to which an employer may suspend without breaching the implied term of trust and confidence.

The Facts

Ms Agoreyo worked as a primary school teacher and it was alleged that, on three occasions, she used unreasonable force towards two particularly challenging pupils.

On becoming aware of the allegations the Executive Head of the school suspended Ms Agoreyo pending an investigation.

Ms Agoreyo subsequently resigned but pursued a claim challenging the lawfulness of her suspension. She argued that the suspension was a knee jerk reaction that was in breach of the implied duty of trust and confidence.

The County Court and High Court

The County Court found that the school did have reasonable and proper cause to suspend Ms Agoreyo and were bound to do so once becoming aware of the allegations. The suspension was not a breach of the implied term of trust and confidence.

Ms Agoreyo appealed to the High Court and her appeal was upheld. The High Court considered that the suspension had been the default position adopted by the school and was a knee jerk reaction in breach of the implied term of trust and confidence.

Lambeth appealed the High Court’s decision.

The Court of Appeal

The Court of Appeal upheld Lambeth’s appeal and restored the County Courts decision.

In doing so, the Court provided clarification that the correct test to apply was whether there was reasonable and proper cause to suspend, as opposed to whether it was necessary to do so.

In assessing the schools decision to suspend against this test the Court considered whether the school had responded to the allegations in a reasonable and proper manner. In the circumstances, particularly taking into account the need to safeguard the children at the school, the Court were satisfied that the County Court judge had been entitled to reach the conclusion that the school had reasonable and proper cause for suspending Ms Agoreyo.

Impact on Schools

Whilst it is often described as such by employers, suspension is not a neutral act and is likely to have a significant impact on the accused employee. For this reason, it is important that schools give careful consideration to any decision to suspend and its justification. In particular, as clarified in this case, schools must be satisfied that there is reasonable and proper cause to suspend.

This will always depend on the specific circumstances and, in particular, the nature of the alleged wrongdoing. Clearly, in circumstances where there is a potential risk to pupils there will generally be a strong justification for suspension. Nevertheless, it is always important that schools apply careful thought to this decision and consider whether there are any appropriate alternatives that may serve to effectively manage the risk.

Where the decision is made to suspend, it is important that this is confirmed to the employee in writing and that the suspension is kept under review to ensure that it is as brief as possible.

Given the implications of a suspension, legal advice should be sought to manage the potential risk.

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About the Author
Oliver Daniels, Senior Associate Solicitor
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