Is suspension from work a neutral act?

9th January 2018

This article first appeared in Legal Futures.

I suspect that many in the industry were as surprised as I was to read the decision in the case of Agoreyo v London Borough of Lambeth [2017] recently, which determined that suspension was in fact not a ‘neutral act’ and instead can amount to a repudiatory breach of the implied term of trust and confidence.

The case related to a teacher accused of using unreasonable force against pupils on three separate occasions. The employer suspended in advance of investigating the allegations; the employee resigned on the same day.

The key points of focus in the decision were the perceived failings by the employer in:

  • Not meeting with the employee to get their version of events before deciding to suspend;
  • Not considering whether there was a ‘reasonable and proper cause’ to suspend;
  • Failing to consider alternatives to suspension; and
  • Not explaining why the suspension was necessary.

The court found that had a meeting occurred, the employer would have discovered that two of the three allegations had been dealt with previously. The original Employment Tribunal decision determined that the allegations were a reasonable and proper cause for suspension of the employee to protect the children.

However, the Judge in the High Court disagreed. The reason provided by the employer in the suspension letter said it was to enable them to carry out a fair investigation, but the High Court Judge questioned why a fair investigation could not be carried out with the employee in the workplace.

The High Court Judge also found there was no witness evidence from the employer to support their decision, and therefore the Employment Tribunal Judge had no basis to form this view.

The case referred to Gogay v Hertfordshire County Council [2000] which found that suspension of a care worker accused of child abuse amounted to a breach of the implied term of trust and confidence.

In this case, a child talked during her therapy about the employee in a way which led to a decision to hold an investigation under s.47 of the Children Act 1998, and as a result the employer decided to suspend, pending the outcome of the investigation.

The court made an issue in the way the letter of suspension was drafted – “the issue to be investigated is an allegation of sexual abuse made by a young person”, which caused the employee to suffer from severe depression, and it found that the employer had no reasonable ground to suspend.

In light of these two cases, employers considering whether to suspend are placed in a difficult position.

Must they now keep an employee in place to avoid the stigma associated with suspension, risking that the allegations could be well founded? What about the implications to the employer if the allegations are genuine and they left the employee in the workplace working – as in these cases – with vulnerable individuals? 

How, as employment law professionals are we to advise on this? It’s now a few months down the line and I am still finding that many commercial clients and HR professionals seem to be unaware of this important decision. So, when is it reasonable for our employer clients to suspend?

In general terms, suspension remains – at least in principle – a neutral act, particularly where it is on full pay; I don’t think the decision in Agoreyo has changed this.

However, it has made me reconsider what practical advice we must now give to clients considering suspension, to avoid it being considered a ‘knee-jerk’ reaction, and potentially amounting to a fundamental breach of contract.

Ultimately, the decision is for the employer to weigh-up which risk they’d prefer to take; the suspended employee claiming a breach of the implied trust and confidence in suspending them; or the risk of negligence in having allowed the employee to continue to work.

As well as advising them of the risks, the following are steps I will be advising commercial clients to take:

  • Check there is a term in the contract of employment which gives the employee a right to suspend, and/or in the handbook/policies/procedures.
  • Engage with the individual concerned to ascertain their version of events (and keep detailed notes of the conversation) before communicating any decision.
  • Consider whether there are any available alternatives to suspension, e.g. a temporary move to another department or role, and whether suspension is justifiable.
  • If suspending, fully document the reasons that a suspension was considered necessary.
  • If suspending, try to agree with the employee how their sudden absence will be explained, to avoid/limit any possible reputational damage.
  • Keep the individual concerned updated with the investigation and provide realistic timescales and fully justified reasons for any delay.

With these in place I believe an employer should be well-positioned to show that they can demonstrate a ‘reasonable and proper cause’ to suspend, if that is the path they choose to go down.

Alexandra Owen is an employment solicitor at DAS Law.

Alexandra Hodson

Senior Associate, FCILEX

Learn more
UK employment law advice

We can provide all the advice you need on employment law. Read up on your employment rights and make sure you are being treated fairly in the workplace.

April 2018 Learn more

Read more from the DAS Law blog

Employment disputes International Stress Awareness Week: your workplace rights

To mark International Stress Awareness Week, Jade Harrison, legal adviser at DAS Law, takes a look at what the law says your employer needs to do about workplace stress

October 2020
Employment disputes How to deal with mental health discrimination at work

There are legal protections in place to support those with a mental health condition. Here’s what you need to know if you are being treated unfairly at work because of your mental health.

October 2020
Employment disputes , Growing your business , Protecting your business , Setting up a business Farming tenancies: what you need to know

Mark Woodman, Solicitor at DAS Law, looks at what farmers need to know regarding a Farm Business Tenancy.

August 2020
Employment disputes Employing farm workers: what you need to know

Finding employees who will be a long-term asset for your business can be an arduous and stressful process. Here are the myriad rules and regulations that you need to be aware of from the outset.

August 2020
Employment disputes , Protecting your business What businesses need to do when coming out of Covid-19 lockdown

The government recently announced the easing of lockdown restrictions for many businesses across the country. Nevertheless, health & safety and social distancing measures still apply.

July 2020
Employment disputes , Protecting your business 6 tips for giving your business a “spring clean”

As we slowly exit lockdown, this is the ideal opportunity to spend some time giving your business a ‘spring clean’. Hayley Marles has six tips for a clean and tidy SME.

July 2020
Employment disputes Can employees refuse to return to work if they feel unsafe?

Can an employee refuse to return to work due to fears of contracting Covid-19? Where does the law stand if employees decide to ‘take a stand’?

July 2020
Employment disputes Flexible furlough: what you need to know

Employers are left trying to understand how the recently ‘flexible’ CJRS can be used as we come out of lockdown and more businesses reopen and bring back their workforces.

June 2020
Employment disputes Redundancy: an employer’s guide

Hayley Marles and Simon Roberts – both Senior Associates at DAS Law – look at what an employer needs to know about redundancy.

June 2020
Employment disputes Redundancy: an employee’s guide

Hayley Marles and Simon Roberts – both Senior Associates at DAS Law – look at what an employee needs to know about redundancy.

June 2020
Employment disputes , Protecting your business The return to work: a guide for employers

Lucy Kenyon looks at what employers need to consider when returning employees to work.

May 2020
Employment disputes The Job Retention Scheme: have you got it right?

DAS Law Associate Carly Owen looks at the latest developments regarding the government’s Job Retention Scheme.

May 2020
Employment disputes , Protecting your business Health and safety and computers

Employers need to manage the risks to their employees of working at computers for long periods of time. DAS Law’s Bethan Mack explains.

May 2020