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Suspend with care: High Court case of Agoreyo holds that suspension is not a “neutral” act

Published: 19th December 2017

Author:  Matthew Ware

In August, Mr Justice Foskett held on appeal from the County Court that Ms Aguero was successful in her breach of contract claim brought against her employer London Borough of Lambeth.

Ms Agoreyo (an experienced school teacher) was employed in the London Borough of Lambeth as a primary school teacher on a 10 month fixed-term contract. In her first 5 weeks she faced challenging behaviour from some of the pupils at her Clapham school: there were 3 separate reports of her having to forcibly remove children from her classroom. On the day of the third incident Ms Agoreyo was suspended, and subsequently resigned.

Ms Agoreyo claimed damages for breach of the implied term of her employment contract that neither party would destroy or seriously damage the relationship of confidence and trust between employer and employee.

It was maintained by Ms Agoreyo, that the reports did warrant an investigation but suspension was not the right course in this case. Additionally, Ms Agoreyo maintained that she had used reasonable force as permitted in law (i.e. the Educations and Inspections Act 2006).
In Mr Justice Foskett’s judgment he agreed with Ms Agoreyo, and re-confirmed that suspension was not a neutral act, having regard to existing case law namely – Mezey v South West London and St George’s Mental Health NHS Trust [2010] EWCA Civ 293).

The judgment was also critical of the suspension letter, namely:

  1. its timing;
  2. the apparent lack of consideration of Ms Agoreyo’s version of events;
  3. there being no reference to whether any alternative to suspension was considered; and
  4. the reason given for the suspension.

Practical tips

  1. Before suspending think carefully – is suspension really necessary? Does the allegation amount to gross misconduct? Can less drastic steps be taken such as changing reporting lines etc?
  2. Does the employment contract permit you to suspend the employee? If not, suspending the employee could amount to a breach of contract
  3. If it is deemed necessary to suspend – the duration of the suspension should be no longer than is reasonably necessary and should be kept under review.
  4. You need to consider what pay and benefits the employee shall receive during any period of suspension. Unless there is a clear contractual right to do so, an employer will not be entitled to suspend without pay. The safest course of action will usually result in an employee continuing to receiving their pay and normal benefits.
  5. When suspending an employee it should be made clear to them: (i) why they are being suspended; (ii) how long they are likely to be suspended; (iii) that their employment contract shall continue to apply; (iv) what their rights and obligations will be during their suspension; and (v) to whom they should report while suspended.

The decision shows the importance of employers considering the appropriate course of action, whether investigating incidents whilst the employee is at work, following the correct procedure if a suspension is unavoidable, or placing the employee on leave/ working from home whilst investigations occur.

Given the possible risk of employment claims, we recommend that legal advice should be obtained prior to suspending an employee. If you feel that you could benefit from any advice in this area, please don’t hesitate to get in touch.

Hine Legal

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