How many letters have you written suspending an employee facing some form of disciplinary enquiry or dismissal, assuring him earnestly that it is a neutral act and in no way presumes any guilt?
Tens? Scores? Hundreds? Yes, me too. But whatever you say there about it being no pre-determination, that is not how it feels to the employee. The Court of Appeal held in Mezey in 2007 that suspension is not a neutral act, “at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job” because “it inevitably casts a shadow over the employees’ competence“. Because suspension has that potential adverse effect, how you go about suspending an employee can be almost as important as the reason for it. Now the High Court in Agoreyo -v- London Borough of Lambeth has confirmed that, unless handled carefully, a suspension can so far imply pre-determined guilt that it amounts to a repudiatory breach of contract and hence grounds to claim constructive dismissal.
Ms Agoreyo worked at a Lambeth school as a teacher for classes which included two children with extremely challenging behavioural issues. The law allows a teacher to use “reasonable force” in specified circumstances, but an allegation was made that on three occasions over about two weeks Agoreyo had gone beyond that in dealing with those children, as a result of which she was swiftly suspended. She resigned immediately, alleging that Lambeth’s conduct had made her position impossible. However, surely suspending a teacher accused of excessive force against a child would be a pretty much obvious reaction, and a failure to do so an obvious hostage to later vilification by parents or press? Yes, but Lambeth’s handling of the matter ran into a number of problems which led the High Court to uphold Agoreyo’s breach of contract claim. In particular:
- a number of relevant codes and statements of teaching practice confirmed (even though outside the terms of the employment contract) that suspension of a teacher should be a matter of last resort. This of course suggested to Agoreyo’s colleagues (without foundation) that the matter was so serious that last resort measures were indeed appropriate;
- there was no investigation of events prior to the suspension. Clearly there does not have to be a full drains-up enquiry before any suspension decision is taken, but equally the employer must at least have looked into the question enough to have formed a reasonable view that there may be substance to the allegations made. Here, Agoreyo was not even spoken to in advance;
- the only witness to the incidents relied on was an unqualified Admin Assistant, perhaps not best placed to assess whether the degree of force used was reasonable in the circumstances;
- senior people within the relevant school were already aware of two of the three incidents for which Agoreyo was suspended, and had not chosen to take any action at that time;
- the reason for the suspension was unclear. In its confirmatory letter, the school said that it was in order to allow a fair investigation of the allegations against Agoreyo, but the Judge said that it was to protect the children, and that suspension was the only way to achieve that. However, there was no justification provided for the suggestion that a suspension was actually required for either purpose;
- although other more experienced teachers had just about managed to contain the two children, the school knew that Agoreyo was struggling to do so. Help was promised but had not arrived by the time of the suspension.
Lessons for employers pre-suspension
- Talk to the employee accused – he may or may not have some knock-out rebuttal to hand, but if you do not ask, you will not know.
- Consider what you gain by the suspension – would the employee’s continued presence at work intimidate possible witnesses, risk retaliation, or obscuring of evidence or otherwise potentially prejudice a fair investigation, or the interests of others? If so, why? Suspending as a knee-jerk reaction will always be a mistake.
- Be seen to consider whether the same protections could be achieved by other means – a temporary transfer to another role or department or site, for example.
- Carry out a quick evaluation of such evidence as you have – are there any obvious holes in it, or any very quick questions you could ask which could dispel suspicions straightaway?
- To limit the damage to the employee should he be “acquitted”, try to agree a line with him which will minimise the scope for awkward questions or adverse inferences on the part of his colleague. I recommend “personal leave” because it implies reasons which excuse the absence of prior notice or later explanation. Whatever you do, however, please do not copy the example of a former client which told the colleagues of an employee suspended after the discovery of 720 pornographic images on his PC that “X won’t be in today as he is not feeling himself at the moment”.