We report on a case where suspension during an investigation of a disciplinary hearing in fact amounted to constructive dismissal, even though the allegations were grave.
The High Court has held that the suspension of a teacher amounted to a breach of trust and confidence (enabling constructive dismissal claims where there is 2 years’ service or more) and should not be considered a neutral act. (Agoreyo v London Borough of Lambeth).
The Claimant, Ms Agoreyo, had 15 years’ prior teaching experience including working with children with special educational needs. She commenced a new teaching role at short notice with a community school in Clapham Park, South London and entered into a fixed term contract with the London Borough of Lambeth on 8 November 2012.
Ms Agoreyo was suspended some five weeks later on 14 December 2012, having been accused of using unreasonable force against two children who were considered to have severe behavioural, emotional and social difficulties. Ms Agoreya claimed that prior to starting the role she was not told that she would be teaching these pupils, or asked whether she had experience of teaching children within the autistic spectrum. Ms Agoreya was suspended and then resigned the same day, subsequently bringing a claim for constructive dismissal.
The letter suspending Ms Agoreyo stated that ‘suspension is a neutral action and is not a disciplinary sanction. The purpose is to allow the investigation to be conducted fairly.’ When taking the decision to suspend, the school had not asked Ms Agoreyo for her response to the allegations or considered any alternatives to suspension. The school also failed to explain what prejudice it would cause to a fair investigation if Ms Agoreyo had remained at work during this period.
The issue before the court was not whether these potentially serious allegations required further investigation, but whether it was appropriate for the school to suspend in such circumstances. Although the correspondence from the school stated that suspension should be regarded as a ‘neutral’ act, it is also well established that suspension should not be treated as a ‘knee jerk’ response to the need to carry out an investigation.
Ultimately, the action by the school was decided by the High Court to amount to a repudiatory (fundamental) breach of contract entitling Ms Agoreyo to resign and treat herself as constructively dismissed. Interestingly, as Ms Agoreyo had under two years’ service to bring a constructive dismissal claim in the Employment Tribunal, she pursued this matter as a breach of contract through the County Court.
This case demonstrates that even in the face of what appears to be serious allegations, where it would usually be reasonable to suspend, care must still be taken prior to doing so. The argument often put forward by employers that ‘suspension is a neutral act’, although still useful to be included in correspondence, does not relieve the employer from facing criticism later. Any decision to suspend, even where the allegations are serious, should be carefully thought through. Failure to do so may put the employer at risk of a claim as well as potentially cause damage the reputation of the employee.