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Employers beware – Suspending an Employee is no longer considered to be a neutral act

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A High Court decision in Agoreyo v London Borough of Lambeth has provided further guidance for employers on suspending employees, after it was held that the suspension of a teacher was unjustified and a breach of the implied term of trust and confidence.

In this article, we take a look at the details of the Agoreyo case and consider the steps employers need to take when suspending an employee.

If you need advice on staying compliant when suspending an employee, you can talk directly to one of our specialist employment solicitors by calling 01282 695 400.

Agoreyo v London Borough of Lambeth: What Happened?

Ms Agoreyo was a teacher at a London based primary school with fifteen years’ experience in her profession.  In late 2012 she was suspended, after being involved in a classroom incident where she was alleged to have used excessive force to remove some pupils from the classroom.

The school in a letter to Ms Agoreyo confirming her suspension stated it was a “neutral action and not a disciplinary sanction” and its purpose was to allow an investigation to be conducted fairly.

The High Court disagreed. It felt suspension had been adopted as a ‘default position’, and that it had been a knee-jerk reaction, since the school had given no consideration to any alternatives to suspension.  Her suspension cast a shadow over her competence and made it difficult for her to return to the workplace, as such it was not a neutral act.

Whilst an employee may be suspended where there is reasonable and proper cause, should the employer get it wrong, then the employee would be entitled to resign their position and claim for constructive unfair dismissal or a breach of contract.

What should employers consider before suspending an employee?

The decision suggests very careful consideration should be given by an employer when deciding whether or not to suspend an employee, and that they should take the following steps:

  • Check the employee’s contract of employment to establish whether there are express terms dealing with suspension.
  • Check any statutory guidance and the ACAS Code of Practice on suspending an employee.
  • Speak to the employee about what has occurred and ask for their response to the allegation before the decision is taken to suspend, since this may have a bearing on that decision.
  • Check whether there are less severe options other than suspension which would be appropriate, such as moving the employee to a different part of the business or department, or have them work from home.
  • Crucially, ensure there is paper trail evidencing the procedure undertaken, to refer back to later should it be required.

What actions need to be taken by an employer during the suspension?

Once the decision has been made to suspend an employee, the employer should then take the following steps:

  • Consider how the employee’s suspension will be communicated on a neutral basis to the employee’s colleagues. Great care should be taken with the wording of any announcement and, if possible, agreed with the suspended employee;
  • Keep the employee regularly informed and updated on the investigation process;
  • Review the employee’s suspension on an ongoing basis ensuring it remains appropriate; and
  • Should the employee return to work, make a further announcement that an investigation has taken place and the allegations have been found to be unsubstantiated.

Contact our employment law specialists today

At LawforEmployers, our dedicated solicitors can provide any legal advice you need when suspending an employee. Our legal experts can discuss your case and provide the guidance you need to ensure the correct procedures are followed.

To talk to one of our knowledgeable employment law experts today, call our dedicated team on 01282 695 400.

Or, if you’d prefer a call back from a member of our team, you can book your free consultation here.