Following the cases of Mezey and Gogay, we are all aware that suspension from duty of a qualified professional, such as a teacher, is not considered to be a neutral act. It shouldn’t be used as a ‘knee jerk’ reaction and could ultimately lead to unfair dismissal claims.
Does the suspension of a teacher breach the implied term of mutual trust and confidence in their contract and enable them to claim “constructive” unfair dismissal?
In the case of Agoreyo v London Borough of Lambeth, the High Court held that the suspension of a teacher led to a breach of the implied term of mutual trust and confidence.
In this case, a teacher was suspended because of the force she used with two troublesome pupils. The behavioural problems connected with these pupils were well known, as were the challenges they presented in the school.
Several actions by the employer led to the court’s decision which was:
- The suspension was enforced prior to the teacher being asked for her initial response to the allegations;
- An alternative to suspension had not been considered whilst initial investigations took place;
- The reason given for the suspension was to allow the investigation to be conducted fairly. However, the suspension letter failed to explain why the investigation could not be conducted fairly if the teacher was not suspended;
- Information about who made the decision to suspend the teacher was lacking in the letter confirming the suspension;
- The court noted that the school had requested assistance to help manage these two pupils on several occasions and that the suspension occurred only a few days after a support plan had been put in place to assist the school, Agoreyo;
- The court also concluded that the suspension was put in place as the default position, that it was a ‘knee jerk’ reaction and amounted to a fundamental breach of contract. Also known as a repudiatory breach of contract.
What are the learning points?
Suspension is not a neutral act and should not be a ‘knee jerk’ reaction.
If faced with this situation, employers should first ask the employee for an initial response to the incident prior to considering suspension.
As an employer, always consider whether there is a need to suspend and even if there is, whether there is an alternative to suspension. Always record your deliberations and reasons for suspension.
If you do suspend an employee, regularly review the need for the suspension throughout the investigation and record the reasons for either continuing or ending the suspension.
When confirming the suspension in writing, detail the reasons for it and who took the decision.
If you find yourself in a position where you are unsure whether to suspend an employee or you want to check the correct process for doing so, please contact our Employment team on 0161 475 7676 or email [email protected].