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How can an employer safely suspend an employee?

04 April 2019

There has been much debate in jurisprudence over when an employer is able to safely suspend an employee. The ACAS Code of Practice on Disciplinaries and Grievances itself stresses that suspension is not a disciplinary sanction, however to exclude an employee from the workplace for the purposes of investigating misconduct is a serious matter.

The case of Mezey v South West London and St George's Mental Health NHS Trust [2010] EWCA Civ 293 makes clear that suspension is not a neutral act. Before an employer is able to suspend an employee, they must have “reasonable and proper cause” to do so. In addition, Gogay v Hertfordshire County Council [2000] IRLR 703 has confirmed that suspension should not be a “knee-jerk reaction”.

So what is “reasonable and proper cause”?

The recent case of London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322 has shed further light on this.

The case involved a teacher, employed at a primary school in London to teach Year 2. She had recently taken over the class, within which there were two particularly challenging pupils. Allegations arose that Ms Agoreyo had used excessive force to control these pupils on three separate occasions. The last of these occasions took place some 11 days prior to the school’s decision to suspend her. The school informed Ms Agoreyo that her suspension was “precautionary…pending a full investigation into the allegations”. Ms Agoreyo resigned the same day and sought to bring a claim of breach of contract, asserting that she had been entitled to resign in response to her employer’s repudiatory breach of contract.

When the claim was first considered, the Court held that there was no breach of the implied term of trust and confident. Ms Agoreyo accepted that the allegations were serious and required investigation, and the Court held that the employer “was entitled and indeed bound to suspend” her. The judge added that the employer “had to consider its duty to protect the children first and foremost”.

Ms Agoreyo appealed to the High Court. The High Court judge upheld her appeal, finding that the employer had breached the implied duty of trust and confidence in suspending her, stating that “the central issue [was] whether it was reasonable and/or necessary for [Ms Agoreyo] to be suspended pending that investigation”. In addition, the High Court judge considered the first instance judge’s findings of fact to be incorrect and substituted his own view. In particular, the High Court judge considered that arrangements that the school put in place between the last alleged incident and Ms Agoreyo’s suspension (namely an additional teaching assistant) meant that the school had not had enough time to consider the impact of that on Ms Agoreyo’s “capacity to cope with class containing [the difficult pupils]”.

The employer appealed to the Court of Appeal on the basis that the High Court judge could not substitute his own findings of fact and also that the incorrect test had been applied. Rather than considering whether the suspension was “reasonable and/or necessary”, the correct approach (from Mezey) was whether the employer had “reasonable and proper cause” to suspend.

The Court of Appeal agreed, finding that “an assessment of whether there was reasonable and proper cause for a suspension, like other issues of reasonableness,…is a question which calls for an evaluation of the facts”. The Court of Appeal further held that the High Court was “not entitled to interfere with the findings of fact which had been made [at first instance]”.

Providing further guidance on when an employer may have “reasonable and proper cause” to suspend, the Court of Appeal stated “in essence the question for the court was to assess whether the way in which the employer had responded to reports received of possible misconduct…was reasonable and proper, so that matters could be investigated. If that response was reasonable and proper it could not be said that the employer had breached the implied term of mutual trust and confidence”. In Ms Agoreyo’s case, the allegations had involved very young children and the employer had to safeguard those children. As a result, the court was entitled to conclude that the employer had reasonable and proper cause to suspend Ms Agoreyo.

Conclusion

This case has not changed the position regarding when an employer can suspend safely, but it has provided further clarity on when an employer may have “reasonable and proper cause”. It is clear that employers should not suspend an employee as a “knee jerk” reaction, but make a reasoned and deliberate decision, depending on the facts of the case. As the test is fact specific, there will be a number of different views to any one particular suspension, but consideration of the circumstances as a whole is key.

By Rebecca Berry

For further advice on the above topics, please call us on 01483 543210 or alternatively email enquiries@barlowrobbins.com

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