Most employers are reluctant to suspend an employee from duty when investigating their conduct as there is a risk that suspension could breach the implied term of mutual trust and confidence.
Employers are correct to exercise caution given the consequences that could flow from making the wrong decision. However suspension will, in certain circumstances, be justified on the facts of the case. Suspension was found to be appropriate in the recent decision of The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo (‘Agoreyo’)  ESCA Civ 322.
Agoreyo concerned an experienced primary school teacher who was accused of using unreasonable force towards two students whose behaviour was extremely challenging to manage. This unreasonable force had allegedly been used on three separate occasions. She was suspended while the investigation into these allegations was ongoing.
Ms Agoreyo argued that the suspension breached the implied term of mutual trust and confidence. She did not dispute that the school needed to investigate the allegations.
The county court at first instance held that there were serious allegations of misconduct that required investigation. They concluded that the suspension was reasonable and proper action in the interests of safeguarding very young children.
However, the high court subsequently reversed the decision of the county court. The court opined that the suspension was not ‘reasonable and/or necessary’.
The case was then appealed to the court of appeal which overturned the decision of the high court. It confirmed that the question as to whether there was reasonable and proper cause for suspension was highly dependant on the individual facts of each matter. The court of appeal found that the high court had erred in asking whether the suspension was ‘reasonable and/or necessary’. It concluded that the county court had been entitled to find that the suspension was reasonable and proper.
Agoreyo confirms that the prime consideration that employers should turn their minds to in determining whether to suspend or not is whether the relationship of trust and confidence will be destroyed or seriously damaged, and whether there was a reasonable and proper cause for the suspension as outlined in the seminal case of Malik v Bank of Credit and Commerce International SA (in liquidation)(‘Malik’) [1998 AC 20,  6WLUK22.
In considering what is ‘reasonable and proper’ the court of appeal emphasised that this was a highly fact specific exercise. They rejected that the suspension needed to be ‘reasonable and/or necessary’.
What does Agoreyo mean for employers considering suspension?
The take home messages from the Agoreyo case are that:
- the Malik test of ‘reasonable and proper’ cause for suspension remains correct;
- the test is not whether the suspension is considered ‘necessary’; and
- suspending an employee should still be approached with caution and should not be the default position when conducting an investigation.
Employers should continue to follow the ACAS guidance including making it clear to employees that suspension is not a disciplinary action, continuing employee benefits during a period of suspension, and keeping the suspension period as short as possible and subject to review.
In cases where there is a need to protect vulnerable people within the workplace (such as the young children in Agoreyo where the allegations concerned excessive force) a suspension will be more likely to be founded to be reasonable and proper, although still needs to be carefully considered.