As part of disciplinary proceedings one of the first steps an employer often takes is to suspend the employee pending an investigation and Disciplinary Hearing (if necessary). The ACAS Code of Practice on Disciplinary and Grievance Procedures says: “In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.” Employers often underline the last point – that suspension is not in itself a disciplinary action – to defuse any immediate employee complaints.

For employers who always suspend whenever there is a disciplinary issue, it is important to emphasise that the Code refers to the use of the power to suspend only where it is considered necessary. It follows that it will not always be necessary in every situation.

The High Court recently illustrated this point in the case of Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB). In this case a primary school teacher was suspended following allegations that she had used unreasonable force against 2 children who had shown extremely challenging behaviour. In a letter suspending the teacher the employer took care to say that suspension was not a disciplinary sanction and that the purpose was to allow an investigation to be conducted fairly.

Despite the seriousness of the allegations and the explanation in the suspension letter, the High Court was unimpressed. Taking out its red marking pen, the Court found there had been a breach of the implied term of trust and confidence which allowed the employee to resign and bring a claim. The Court found that suspension had been adopted as “the default position” and was “largely a knee-jerk reaction”. Before suspending there had been no attempt to ascertain the teacher’s knowledge of or version of events. There was no evidence of any consideration of alternatives to suspension. The employer’s letter did not explain why an investigation could not be conducted fairly without the teacher being suspended. Importantly in this case, there was no consideration given to previous investigations in the past against this same teacher which had not resulted in any disciplinary action.

The lesson from this case is that although it is not a disciplinary sanction, suspension is not best described as a neutral act. To avoid a breach of the implied term of trust and confidence allowing an employee to resign and bring a claim for constructive dismissal, employers must pro-actively consider the purpose of the suspension and avoid a default or knee-jerk approach. As ever, keeping a written record of the reasons for a decision is important.

For more information on disciplinary procedures or to speak to one of our Employment Solicitors call us on 01924 387 110.

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