Articles | Suspension is not a neutral act

Ian Machray discusses a recent decision on whether the suspension of a teacher amounted to a breach of contract

 

Ian Machray

Ian Machray

Suspending employees suspected of wrongdoing is not necessarily a ‘neutral act’ and should be used by employers with great caution. This was demonstrated at a recent case at the High Court where it was held that suspension of a teacher amounted to a breach of the implied term of mutual trust and confidence.

The case centred on the actions of Ms Agoreyo, a teacher with 15 years’ experience, who was suspended for using excessive force when encouraging two troublesome pupils to behave. Three separate incidents were cited including ‘dragging’ one of them out of the classroom.

In light of these allegations Ms Agoreyo received a suspension letter stating that “suspension is a neutral action and is not a disciplinary sanction”. Ms Agoreyo resigned later that day.

There are certain scenarios where employees can be suspended if there is reasonable and proper cause, however, in this appeal the court reaffirmed that suspension is not a neutral act. This is particularly so in the context of a qualified professional in a vocation, such as a teacher, as the damage to reputation is hard to restore even if the allegations are found to be false.

The Court criticised the council’s procedure, primarily their failure to consider Ms Agoreyo’s version of events and alternatives to suspension. Further the finding that the school had reasonable and proper cause to suspend her on grounds of its overriding duty to protect children could not stand, given that the stated purpose of the suspension was not to protect children but to ensure a fair investigation. Suspension had been used as the “default position” and as the judge stated “suspension is not to be considered a routine response to the need for an investigation”.

An unlawful suspension may breach the implied duty of mutual trust and confidence and entitle the employee to resign and claim constructive unfair dismissal. Therefore it is important that employers consider a number of factors before suspending employees, including:

• identifying if there is an express provision in the contract to suspend an employee (also check whether your handbook states when suspension is appropriate);
• having clear justification as to why suspension is necessary;
• considering alternatives to suspension;
• speaking to the employee before making any decisions (suspension should not be a knee-jerk reaction); and
• if suspension ultimately takes place make sure you keep the employee informed of when they may return.

If you would like any advice with suspension of employees please do get in touch.