The end of free movement: what SMEs need to know
The recent case of Agoreyo v London Borough of Lambeth in the High Court is a reminder to employers that suspending an employee should never be a knee-jerk reaction. The courts do not consider suspension to be a neutral act and recognise the negative consequences for employees who are suspended. As such, an employer should always ensure that it is necessary and reasonable to suspend an employee before doing so.
In this case, the employee in question was a teacher who was suspended following complaints that she had used an unreasonable amount of force upon students in the classroom. Following the complaints, the employee was suspended pending a full investigation into the allegations.
The High Court held that in the present case it could not be said that it was reasonable and necessary to suspend the employee. When deciding whether to suspend an employee, one had to have regard to the fact that suspension inevitably casts a shadow over an employee’s competence. In this case, there clearly needed to be some further investigation into the issue before deciding whether or not to suspend. There were numerous factors evidencing that the employer had not sufficiently considered whether it was appropriate to suspend. The employer had not given the employee a chance to present her own response to the allegations. There was also no evidence that consideration was given to any alternatives to suspension by the employer. The judge also observed that the suspension letter stated that “the purpose of the suspension is to allow the investigation to be conducted fairly”, casting doubt on any assertion that suspension had been implemented because it was necessary to protect the children.
The High Court therefore held that suspension was an improper knee-jerk reaction in the circumstances, which was sufficient to amount to the breach by the employer of the implied term of trust and confidence in the employment relationship.
Lessons for employers considering suspension of an employee
This case is a reminder to employers that suspension should be considered as seriously as any other disciplinary step, such as warnings or dismissals, because an inappropriate decision to suspend can amount to a breach of trust and confidence of the employer employee relationship, entitling that employee to resign. This can give rise to claims of wrongful and unfair dismissal. Employers should be cautious before suspending. It will usually be appropriate to at least talk to the employee before making any decision. An employer should also give full consideration to whether there are any alternative courses of action other than suspension in order to achieve its objective and keep records of such consideration having been given.
If you would like any further information or advice about redundancies, relevant alternatives or any other issues explored in this blog, please contact a member of our employment team.
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