Suspension resulted in a breach of contract

A recent case shows that immediately suspending an employee accused of serious misconduct can cause difficulties for the employer, if unjustified.

A teacher was accused of using unreasonable force towards two children in her class, who were known to exhibit challenging behaviour. The head teacher investigated and concluded that the teacher had used no more than reasonable force. However, the teacher was suspended by the executive head. A letter was sent to the employer, stating that the suspension was a ‘neutral act’ and not a disciplinary sanction. It also indicated that the purpose of the suspension was to allow an investigation to be conducted fairly.

The teacher raised a claim for breach of contract, arguing that, in suspending her, the council had breached the implied term of mutual trust and confidence. She won her case on appeal. The High Court made several criticisms of the council’s handling of the case, including:

• The teacher was not asked for her version of events before being suspended;
• the head teacher’s initial investigation concluding that the previous allegations were unfounded was overlooked;
• no alternatives to suspension were considered; and
• no explanation was given as to why an investigation could not be carried out fairly without the suspension

This decision is a reminder that employers must give careful thought to a decision to suspend. Failure to do so might lead to a claim of constructive dismissal.

Employers can mitigate this risk by ensuring the following points are considered in deciding whether or not suspension is necessary:

• Would the employee’s presence impede an investigation?
• Is there a risk of the employee interfering with witnesses or evidence?
• Is there a risk to the safety of other staff, customers or service users?
• Are there suitable alternatives?
• Is suspension reasonable in the circumstances?

That is not to say that suspension should be avoided at all costs. It is important not to lose sight of the nature of the allegations against the employee – there will be cases where suspension is necessary. However, caution must be exercised to ensure that it is not the default position, even in cases involving potential gross misconduct, and all circumstances should be taken into account.

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