Can suspending an employee amount to a repudiatory breach of contract?
Suspending an employee to investigate disciplinary actions is usually thought of as a neutral act. However, this case demonstrates that it will not always be reasonable to suspend.
In Agoreyo v London Borough of Lambeth , the High Court found that the County Court had erred in its finding that the defendant “clearly had reasonable and proper cause to suspend the claimant” and that it was “bound to suspend” Ms Agoreyo because of its “overriding duty to protect the children pending a full investigation of the allegations.”
Ms Agoreyo started working for the defendant as a primary school teacher on 9 November 2012. There were allegations that Ms Agoreyo had used unreasonable force towards children on three occasions in November and December 2012. The headmistress investigated two of these incidents and concluded that Ms Agoreyo had used reasonable force.
Suspending an employee not reasonable
However, on 14 December 2012, the Executive Head informed Ms Agoreyo that she was suspended as a result of these allegations. Ms Agoreyo resigned the same day. Ms Agoreyo argued that suspension was not necessary or reasonable in order for the defendant to carry out the investigation. She did not challenge that the defendant should not look into the allegations.
The High Court found that the defendant had been in repudiatory breach of contract and that Ms Agoreyo’s resignation amounted to a constructive dismissal. Some of the reasons for this are outlined below.
Breach of contract
It is important to note that Ms Agoreyo did not have the requisite service to bring a claim for constructive unfair dismissal in an Employment Tribunal; however, she was able to bring a breach of contract claim in the County Court.
Although this finding is fact specific, employers need to carefully consider whether suspending an employee is appropriate, since it could lead to breach of contract claims in the County Court.
In deciding whether to suspend an employee, thought should be given to the following (which did not occur in Ms Agoreyo’s case):
- Whether the employee has had the opportunity to put forward their case;
- Whether an employer has undertaken some form of investigation before deciding to suspend;
- Whether the employer has explained why it cannot carry out the investigation without suspending the employee;
- Whether alternatives to suspension have been considered and evidenced.
Suspension should not be the default position nor should an employer use it as a “knee-jerk reaction”, since suspending qualified professionals “casts a shadow over the employee’s competence,” said Mr Justice Foskett.
Constructive unfair dismissal
Where an employee has service to bring a constructive unfair dismissal claim in an Employment Tribunal, if the above has not been followed, it may lead to a finding that the employer has breached the implied term of mutual trust and confidence.
Employment contracts, disciplinary procedures and employee handbooks should be reviewed to see whether an employer has an express right to suspend an employee, and whether this process has been adequately explained. This will undoubtedly aid an employer’s defence if the need arises.
If an employer does decide that suspending an employee is appropriate, it must review this decision on a regular basis and keep the employee updated throughout this period.
For more information on any of the issues raised in this article or on employment matters in general, contact Fawziyah Javed in the Leeds Employment team by emailing [email protected] or calling 0113 368 7825.
Posted on Dec 5th, 2017 by Lyons Davidson