Suspension in relation to safeguarding concerns should be used sparingly
Author: Darren Newman
Although a recent Court of Appeal decision concerning suspension in relation to safeguarding concerns provides an element of reassurance for employers, consultant editor Darren Newman explains why suspension should still be used only sparingly.
The Court of Appeal decision in London Borough of Lambeth v Agoreyo [2019] IRLR 560 CA will be a relief to employers worried that they would be prevented from suspending employees who are the subject of safeguarding allegations. Ms Agoreyo resigned from her position as a teacher when she was suspended pending the investigation of allegations that she had used inappropriate force to deal with two children exhibiting challenging behaviour. Since she did not have the length of service needed to bring an unfair dismissal claim, she brought a claim for wrongful constructive dismissal in the county court, which dismissed her claim. She then appealed to the High Court, which held that the knee-jerk reaction of the employer in suspending her immediately in response to the allegations was a fundamental breach of contract. The Court of Appeal has now restored the county court decision.
The county court judge had held that the school had an overriding duty to protect the children in its care. This meant that it had little choice but to suspend the employee where there was a credible allegation that inappropriate force had been used. The High Court had pointed out that the suspension letter handed to Ms Agoreyo did not refer to this issue but instead claimed that the purpose of the suspension was to allow a proper investigation to take place. The Court of Appeal's view was that it was important not to over-complicate matters. It was obvious that there were serious allegations of misconduct that needed to be investigated and the fact that the case raised important safeguarding issues was a factor that the county court judge was entitled to take into account in deciding that suspension was appropriate.
However, it is important to understand that the Court did not hold that employers have an absolute right to suspend employees in such circumstances. The basis of the ruling was that the High Court judge had overstepped the mark in reversing the decision of the county court by making its own findings of fact about what the employer should have done. While the county court judge was entitled to find that there was no breach of contract, the case could just have easily gone the other way. Nevertheless, there are some general principles that we can take from the case that should be of help to employers facing a similar situation.
The idea that the suspension of an employee might amount to a breach of trust and confidence is not new. In Gogay v Hertfordshire County Council [2000] IRLR 703 CA, the employer was found to have been in breach of the implied term when it suspended an employee over suspicions - which quickly turned out to be unfounded - that a child in care was being abused. This heavy-handed decision was the cause of so much stress to the employee that she suffered psychological harm as a result, even though the suspension was lifted just over a month later. What put the employer in breach of contract was that there was no real justification for the suspension. The employer told the employee that an allegation of sexual abuse had been made, when in fact the situation was far less clear than that. Concerns had been raised based on things said by the child in question, but there was no specific and credible allegation of abuse. In contrast, in Agoreyo, the allegation was clear - there were a number of specific incidents witnessed by more than one employee that warranted investigation.
Suspending an employee in response to a safeguarding allegation will inevitably damage the employment relationship - how could it not? The situation is upsetting for both sides, but particularly difficult for the employee. However, the mere fact that trust and confidence has been damaged - or even destroyed - will not, on its own, mean that there has been a breach of the implied term. It is worth remembering exactly what the implied term is. As expressed by the House of Lords in Malik and another v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] IRLR 462 HL, the term provides that neither side shall "without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee". For there to be a fundamental breach, the employer must have acted "without reasonable and proper cause". Where the High Court had gone wrong in Ms Agoreyo's case - as well as interfering too much in the county court's findings of fact - was in asking whether or not it was necessary for the employer to do what it did. The Court of Appeal held that this set the bar too high.
An employer can, therefore, protect itself from constructive dismissal claims by ensuring that it has reasonable grounds for any course of action it adopts. Agoreyo was concerned with the initial decision to suspend, but the implied term of mutual trust and confidence will continue to apply throughout the suspension period. An employer might have reasonable cause to suspend but still breach the term in the way it manages the ongoing situation. One danger is that the suspension drags on for too long, with the employee feeling increasingly isolated. The longer an employee remains suspended, the harder it is to envisage a smooth return to work. It is important that the employer has taken proper steps to ensure that the suspension is as brief as possible and that any investigation is conducted promptly and efficiently. To avoid leaving the employee too isolated, a clear channel of communication should be kept open, allowing the employee to be kept up to date, both with the progress of the disciplinary proceedings and with any other workplace issues. While a suspended employee will usually be told not to discuss the case with colleagues, it is important for employers to be realistic about what restrictions can be placed on with whom the employee has contact outside working hours. Agoreyo may reassure employers about their ability to suspend employees when serious allegations are made, but there is nothing neutral about suspension. It damages the employment relationship and should be used sparingly and with great care.
