Where an employee appears to have committed a serious breach of conduct employers will often suspend first and ask questions later. The assumption appears to be that once it is emphasized to the suspended employee that this is not a finding of guilt but only a temporary removal during an Investigation then everything is okay. That is not however how it is seen by the employee, particularly where this occurs in a small community where reputation means everything.
Thanks to UK Employment Law Barrister Charles Price – www.charlesprice.net – for bringing the case of Agoreyo v London Borough of Lambeth EWHC/QB/2017/2019 to our attention. This concerned the case of a teacher suspended because of the alleged force she used with two children. The High Court ruled that the suspension did, in fact, amount to a breach of the implied term of mutual trust and confidence. This has come somewhat as a surprise to practitioners who have been advising for years that suspension is a neutral act and perhaps a useful tool to ‘slam the breaks on’ whilst an Investigation can take place. So many times have we seen policies which state that suspension should be seen as a neutral act and will be used: ‘If the allegation against the employee is serious or that the presence of such an individual will impede an investigation’.
In Agoreyo v London Borough of Lambeth, however the Appellant had not been asked for her response to the allegations against pupils O and Z and she resigned the same day. The Appellant had appealed against an order dismissing her claim against the Defendant for damages for breach of contract.
The Appellant is a teacher and, at the time of the material events in November/December 2012, had about 15 years’ experience of teaching and had worked previously with children with special educational needs. On November 8th, 2012, she entered into a contract with the Defendant to work as a teacher at Glenbrook Primary School, South London,having been interviewed only the day before. The Appellant ceased working in this role on December 14th, 2012, some five weeks later. She was suspended that day because of the force she used in three incidents involving O and Z and she also “resigned” on the same day.
The Executive Head Teacher, in her letter to the Appellant, said: ” I must write to inform you of a decision taken today to suspend you from duty on your normal rate of pay with immediate effect. This is a precautionary suspension, in line with disciplinary procedure pending a full investigation into allegations“. This is so often the language used in Suspension letters.
The allegations were 1) that the Appellant was seen to “drag a child very aggressively,a few feet down the corridor whilst shouting at him. 2) that ” a child was dragged on the floor,out of the classroom door by yourself in the presence of another member of staff and the rest of the children and was heard to cry “help me”,and that 3) “a child with special educational needs was told to leave the classroom,as he was unable to follow your instructions. When he refused you were heard to state: “If you don’t walk then I will carry you out.” You then proceeded to pick up the child who kicked and screamed in the presence of all the class children…”
The letter to the Appellant added that “the suspension is a neutral action and not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly“.
The Court argued that the Tribunal did not appear to have reached a specific conclusion about how difficult the two children, O and Z ,were. “The conclusion was to the effect that other teachers had been able to deal with them and that the Appellant had been given all the support to which she could reasonably have expected to be entitled”.
The Court`s Decision
“It seems tolerably clear”, argued the Court,” that O and Z presented, both individually and in combination, as a challenge to any teacher when confronted with the task of teaching and controlling over 20 other pupils of a similar age. “The Appellant’s Counsel at the trial advanced the proposition that the “behavioural difficulties” of O and Z were “severe”.
The Court concluded, in finding in the Appellant’s favour, that there were very strong reasons on the evidence heard for finding that the Defendant had been in repudiatory breach of contract and that the Appellant’s so-called “resignation” amounted to a constructive dismissal.
Distinguishing features of this case?
The features which distinguish this case from others is that firstly the allegations against the teacher were very serious; secondly that a decision to suspend, which would after all prevent her from working and risk defaming her name was decided as a ‘knee jerk reaction’. No other option was explored; finally The claimant was not interviewed before the decision to dismiss was taken.
At minimum, before consideration of suspension of the employee, the employer should first place the allegation before the employee and then seek the employee`s response. Take some time to consider next action. Don`t go to the meeting with the Suspension Letter in hand: its very hard to turn back from that intention!
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