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  • Published:
    22 August
  • Area of Law:
    Employment

Should I Stay or Should I Go Now…?

Whenever an employee is suspected of having committed a disciplinary breach, there needs to be an initial investigatory process before any formal disciplinary proceedings are commenced. Sometimes, it may be necessary to remove the accused from the workplace whilst that investigation is carried out (for example, to avoid any risk of evidence being tampered with).  Best practice in these instances dictates that the employee should be informed in writing of the suspension, along with an assurance that the act of suspension does not constitute a step in the disciplinary process itself, nor is it intended to convey any suggestion of guilt on the part of the employee suspended.

Suspending an employee, however, should never be the default response to allegations of wrongdoing against an individual, particularly where the employee under suspicion is in a professional role. As a local authority learned to its cost following a recent appeal case heard in the High Court (Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB)), the act of suspension is not a neutral act, and should never be used as a knee-jerk reaction to allegations against an employee.  Although the judge, Foskett J, may have been influenced in this particular instance by express statutory guidance which stated that (in the context of allegations against a local authority teacher) all other options should be considered before suspending a member of staff, and that suspension “should only happen if there is no reasonable alternative”, his decision was highly critical of the lack of thought applied to the reasons for the suspension as recorded in the notification letter to the employee.  In fact, he went as far as to say that, in the circumstances, he considered that the act of suspension “would have been sufficient to breach the implied term relating to trust and confidence”.  As a consequence, it was open to the employee to accept that repudiatory breach by the employer, resign and claim constructive dismissal.

What does this mean for employers?

Employers need to tread carefully when they learn of allegations against an employee, and should not assume that suspension is always going to be a necessary or appropriate first step prior to investigation.  At the very least, preliminary enquiries may need to be carried out to establish if there appears to be any substance to the allegations themselves. If and when suspension is being considered, it is important to have a clear understanding of why it is considered a necessary step – and to communicate that reason clearly to the employee. This is a case of:  if the employee stays (in work) there may be trouble, but if he goes there may be double… [with apologies to The Clash].

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