In almost all cases of misconduct or gross misconduct of an employee, the thought of whether or not to suspend the employee pending an investigation will cross the employer’s mind. Generally the view has always been that suspension isn’t appropriate in all circumstances but, where the employee’s continued presence in the workplace may hinder the investigation or where the misconduct is sufficiently serious to justify suspension to remove the immediate threat, such as where there has been a physical altercation between two employees or suspicion of criminal activity, then suspension will be a safe step to take.
It has been widely thought that suspension is a neutral act and should be with pay except for very limited circumstances where continuing to pay the individual would result in a criminal offence being committed by the employer, for example where the employee is suspected of not having the right to work in the UK. There should be no suggestion at the stage of suspension that the employee is guilty of the misconduct alleged.
However, the High Court has recently looked at the issue of suspension in Agoreyo v London Borough of Lambeth. This case concerned a teacher who was suspended following an allegation that she used excessive force against two children. Her employer did not look to question her at the time to get her view on the incident and the High Court decided that the employer did not consider any alternatives to suspension. The reason the employer gave for the suspension was to “allow the investigation to be conducted fairly”. The employee resigned the same day.
The Court was of the view that suspension adopted as a default and not after a full and reasoned thought process was sufficient to breach the implied term of mutual trust and confidence between employer and employee.
It is also important to highlight a further distinction that the Court made in this case. It decided that, as the employee was a teacher and therefore a qualified professional, the effect of suspension on the perception of her in the school environment was sufficient to determine that the act of suspension was not neutral. There may, therefore, be more leeway for an employer to suspend an individual who is not in a professional role. However, best practice would always be for the employer to consider the reasons for suspension in line with the circumstances and whether there are any options other than suspension which would achieve the same result. Should an employer conclude that they have no option but to suspend it would be helpful to include a passage in the suspension letter confirming the reasons why the employer has made this decision and what they have considered in getting to that point.
It is particularly important that proper regard is given to this for those in the medical profession given the Court’s comments on those employees in professional roles.