One of the issues we frequently advise on is suspending employees prior to possible disciplinary action. Many employers just want the employee off the premises, even when they do not yet fully understand what has happened. There has always been an implied duty in contract law that employers will be ‘reasonable’ when suspending employees; they will have reasonable grounds and will not act hastily or leave the employee suspended for too long. (We did have one manager forget once that he had suspended an employee and left him off work on full pay for 6 weeks before he remembered! It is true that we weren’t particularly sympathetic when he rang to try and rush through the dismissal.)

The need for care when suspending employees has been highlighted by a recent case that went through the County Court, which has re-established the requirement that employers must have reasonable and proper cause to suspend. Not only does this case re-establish rules around suspending, but also shows the lengths that some employees will go to, in order to receive recompense for the bad behaviour of their employers.

Ms Agoreyo was employed by the London Borough of Lambeth as a primary school teacher. She was suspended pending suspicion of using unreasonable force with two children. Ms Agoreyo did not have the required two year's service to bring a claim for unfair dismissal through the Employment Tribunals, so she resigned and brought her claim to the County Court for beach of contract, claiming her suspension had breached the bond of mutual trust and confidence between employer and employee. At first her claim did not succeed, but at the High Court, the judge found in her favour. In finding her claim to be valid, the High Court ruled that suspension should never be the default option. There was no attempt to gain the claimant's views before she was suspended and this was where the fault was found. Although the letter suspending the claimant said all the right things, i.e. that the suspension was not disciplinary in nature and allowed for a full investigation to be undertaken, the claimant was suspended prior to her being given the option to put her point of view. So what should you do in a situation where you feel that suspension is the right course of action?

The best advice we can give is to follow the ACAS Code of Practice for suspensions. This says that suspensions should only be used in cases where:

  • There is a need to preserve evidence
  • Witnesses may be intimidated and this needs to be avoided
  • There are two or more parties involved where work relationships have broken down and they need to be separated
  • There is a need to protect a victim of alleged harassment
  • There is a need to protect property, both an employee's or the Company's.

Suspension should be as brief as possible and it should be made clear that in itself it is not a disciplinary sanction. A letter should always be issued to confirm the suspension and to explain that it is not disciplinary, it is purely to enable an impartial investigation to take place. Where the High Court case goes further is to require that the letter explains why the individual has to be out of work during the period of suspension. And it does help to at least conduct an initial investigatory interview with the individual about what has happened before you actually suspend. In the case of Ms Agoreyo, she could have lost her career as a result of the stigma of suspension, even if not found guilty of the charge. Employers do have a duty of care to the individual when suspending and while on suspension, especially where rumours and talk may be rife.

Employment Contracts and Dismissals
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