Suspending an employee is not always a neutral act

August 22, 2017

In instances of serious misconduct an employer may wish to suspend an employees during an investigation. This is generally provided for in disciplinary procedures and may be appropriate, for example where there is a threat to the business or other employees, or where there are concerns about potential interference with evidence or attempts to influence witnesses.

Generally where this step is taken it is reinforced to an employee that their suspension is not to be regarded as a sanction and does not imply guilt. But is it always the case that suspension is a “neutral act”? The High Court recently had to consider this question in the case of Agoreyo v London Borough of Lambeth [2017] EWHC 2019.

In this case a teacher was suspended following alleged use of force with two children. Ms Agoreyo resigned the same day. In the school’s letter suspending Ms Agoreyo it was stated that, “The suspension is a neutral act and not a disciplinary sanction. The purpose of the sanction is to allow the investigation to be conducted fairly.” The key issue was whether the suspension was a neutral act, or whether it amounted to a breach of the implied term of mutual trust and confidence.

The High Court held that in the case of a qualified professional vocation, a suspension is not a neutral act, particularly as a suspension could blemish the employee’s professional reputation.  It was also remarked that this principle could be applied to other qualified professional vocations such as those working in the medical or legal profession.

What is clear from this case is that suspension should not be the default position and consideration should be given to alternatives. Employers should also review periods of suspension and ensure they lift the suspension at the appropriate time.  The High Court in the present case held that Ms Agoreyo should also have been given the opportunity to respond to the allegations, the reasons for the suspension should have been given careful consideration and it is unlikely that allowing an investigation to be conducted fairly will on its own be a sufficient reason to suspend a professional employee.