Suspension – making an informed decision


In the recent case of Agoreyo v London Borough of Lambeth LBC [2017] EWHC 2019 (QB), the High Court held that the suspension of a teacher, purportedly to allow for an investigation to be conducted fairly, constituted a repudiatory breach of contract, entitling the teacher to resign and treat herself as constructively dismissed.

In light of this recent decision, we take a look at the ability of employers to suspend employees, as well as the potential pitfalls and risks that they should be mindful of.

Why would you suspend an employee?

It is really only in instances of alleged serious misconduct where an employer may decide to suspend an employee while an investigation is carried out. This may be appropriate, for example, where there:

  • is a potential threat to an employer’s property, its organisation as a whole or other employees;
  • is a risk that an employee may tamper with or destroy evidence;
  • has been a breakdown in relationships;
  • is a risk that an employee may seek to influence witnesses; or
  • is a risk to an employee’s health and safety.

In its guidance on ‘Discipline and Grievance at Work’, Acas states that a period of suspension may allow ‘tempers to cool and hasty action to be avoided’. However, it is important to remember that the decision to suspend should only be used after careful consideration of the reasons why an employer feels this may be necessary.

Do you have the right to suspend?

It is always advisable to ensure that employees’ contracts of employments explicitly provide a right to suspend but what happens if you don’t have such a clause?

There isn’t a general obligation for employers to provide work for an employee as long as they receive their wages. However, an implied right to work can arise in certain circumstances, for example, where the nature of an individual’s work means they need to work. This can include situations where an employee:

  • is otherwise deprived of the opportunity of earning remuneration, such as shift premium or commission;
  • needs to maintain a public profile and needs to work for that purpose; or
  • needs to exercise their professional skills frequently and needs to work for that purpose.

If there is such a right, there is a risk that suspending the employee in question could amount to a breach of contract and legal advice should be sought before taking such a step.

What about the implied term of trust and confidence?

Even if an employer has the contractual right to suspend, they will always still have to bear in mind the implied term of mutual trust and confidence which is contained in every employment contract.

Employers should be satisfied that they have reasonable and proper cause for suspension in order to avoid breaching this term. This is important because a repudiatory breach of this term may entitle an employee to bring the contract to an end and bring an unfair dismissal claim (if they have the requisite two years’ service).

Employers should therefore give some thought as to whether there are other steps which may avoid suspension. For example, contractual terms allowing an employee to be moved to another area of the business or other safeguards to protect an employer against any concerns.

A “knee jerk” decision to suspend an employee, without any consideration as to whether such action is necessary may result in a breach of mutual trust and confidence. Examples of cases, where employers have fallen short and lost in the employment tribunal, include situations where they have failed to review and lift a period of suspension and where they have suspended in relation to allegations of a particularly serious or sensitive nature when there has been no prima facie evidence.

What should you do if you do suspend?

If a decision is made to suspend an employee, bearing the above points in mind, an employee should be informed of the fact as soon as possible, and any conversation should be followed up in writing. It will be important to:

  • confirm the suspension, the reason for this, and how long it is anticipated that it will last;
  • confirm that the suspension is temporary, not an assumption of guilt and not a disciplinary sanction;
  • explain the employee’s rights and obligations whilst they are suspended;
  • confirm that their employment contract will continue but that they will not be required to report for work and that they must not contact clients or colleagues; and
  • provide them with a point of contact to have during their period of suspension.

Employers should give thought to the reason for suspension and ensure the suspension fulfils this reason. For, example, a suspension has been found to be a breach of contract where there was an allegation of abuse but the employee in question was never left alone with children. Hence there was no risk in reality and a period of suspension assumed guilt. We would suggest you also give thought to what information is given to colleagues, clients and other external third parties about an employee’s suspension and the investigation behind it. Particular care should be taken to ensure that any statement made does not portray any assumption of guilt that could then prejudice the fairness of any subsequent disciplinary hearing. Although suspension should not be seen by employers as a form of punishment, employees will often view it as such and this is why it is extremely important that it is handled sensitively. This is important so not to give any sort of signal as to the outcome of any disciplinary hearing.

Periods of suspension should be as short as possible and the decision to suspend should be kept under ongoing review.

It is also extremely important that employers operate suspension policies consistently across the board. For example, if two or more employees are involved in an incident of alleged misconduct and only one of them is suspended without good reason, this could also give rise to a breach of trust and confidence. In addition, employers will open themselves up to allegations of discrimination if the employee who is treated differently has a protected characteristic under the Equality Act 2010.

What about pay?

Unless there is a clear contractual right to do so, an employer will not be entitled to suspend without pay. Therefore, while the employee is suspended, they should continue receiving their pay and normal benefits.

If an employee who is suspended falls sick, an employer may wish to review the amount of pay they are receiving, if, under their sick pay policy, the employee would only be entitled to statutory sick pay (SSP). In these circumstances, an employer may consider bringing the suspension to an end and thus, the employee will default to being on sick leave. An employer should make sure that it reserves the right to re-impose the suspension should the employee become fit to work again.

The Agoreyo case serves as a useful reminder that suspension is not always a neutral act. In this case there had been no attempt to ascertain the employee’s version of events before making the decision to suspend her, there was no evidence of any consideration of alternatives to suspension and no explanation was provided as to why an investigation could not be conducted fairly without the need to suspend. Suspension is a step that should only be taken when reasonable and necessary and it will be important for employers to be able to show why this was the case.

If you have any questions relating to this article or require any advice please contact Catherine Hope, Associate in the Employment team, on 0191 226 3801 or at catherine.hope@sintons.co.uk.


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