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Case law: Suspending an employee pending investigations was not a ‘neutral act’, and amounted to constructive dismissal

Employers should not suspend employees as a first reaction to a potential disciplinary matter, and only after an appropriate initial investigation, and after the employee is given opportunity to respond to the allegations - particularly where the employee’s job is vocational, a recent ruling makes clear.

September 2017

This update was published in Legal Alert - September 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Please note: A newer article on this case was published in the April 2019 edition of Legal Alert following subsequent developments in the legal process.

A teacher was suspended following allegations she had used force on two ‘challenging’ children. She was not asked to respond to the allegations, and alternatives to suspension were not considered. The employee had raised her concerns about her ability to deal with these children, but it had taken the school several weeks to suggest a plan for dealing with them. The head teacher had previously judged one instance where the employee had used force in relation to the children as reasonable.

The employee resigned, claiming constructive dismissal on grounds that her employer had breached the implied term of mutual trust and confidence in the employment contract.

The employer argued that the suspension was a ‘neutral action’ and not a disciplinary sanction. Its purpose was to allow an investigation to be conducted fairly. It did not explain why the investigation could not be conducted fairly without the suspension, or indicate that the suspension was necessary for the protection of the children in the school.

The High Court found no evidence that the decision-maker had spoken to the head about her knowledge of what had occurred, or about the support put in place for the employee.

The High Court ruled in the employee’s favour. It found that, at least in the case of ‘a qualified professional in a function which is as much a vocation as a job’ such as teaching, suspension was not a neutral act. It ruled that ‘In [the] circumstances, one would have thought that some observation from the Appellant herself would have been called for before she was suspended – not a full investigation, but enough to determine whether the potential stigma associated with a formal suspension could be avoided’. It therefore found that the suspension was a knee-jerk reaction, with suspension as the default position.

The employer was therefore in repudiatory breach of contract, and the employee’s resignation amounted to a constructive dismissal.

Operative date

  • Now

Recommendation

  • Employers should not suspend employees as a kneejerk reaction to a potential disciplinary matter but, at the least, only after an appropriate initial investigation - and having given the employee an opportunity to respond to allegations against them, particularly where the employee’s job is vocational

Case ref: Agoreyo v London Borough of Lambeth [2017] EWHC 2019

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.