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Suspending Employees, or Breaching Implied Terms of Employment?

When an employee is faced with disciplinary proceedings, particularly where these relate to conduct, it is a common reaction for the employer to look to suspend that employee. 

how to suspend an employee

Suspension is often carried out as an automatic response in every situation, with little or no thought being given to reasoning behind the suspension. However, this step should only be taken for a legitimate reason, for example; to preserve evidence, to protect the integrity of the disciplinary investigation or to protect other employees. 

A 2017 High Court judgment raised the risk of such an approach being taken by ruling that taking such steps as a “knee-jerk reaction” is likely to be a breach of the implied term of trust and confidence that exists in all employment relationships, so giving rise to a claim by the employee of breach of contract or constructive dismissal. 

In the recent Court of Appeal judgment, in the case of London Borough of Lambeth v Agoreyo, the following tests were applied when considering if suspension was a ‘knee jerk’ reaction or a justified action; 

  1. The correct test to apply whether to suspend an employee is not whether suspension is “necessary” but instead if there is “reasonable and proper cause” to suspend the individual in the circumstances; 
  2. That an act of suspension can constitute a breach of the implied term of trust and confidence and so give rise to a claim, however this is not automatically the case. Instead whether there is a breach should be looked at on a case by case basis, applying the above test; and 
  3. That whether a suspension of an employee is a ‘neutral’ act is not a relevant (or useful) question to ask. Instead the key issue is whether or not the employer was justified in suspending the employee on the particular facts. 

Our top tips when suspending an employee 

While this case does not offer a dramatic change in the direction of the law, it does clarify the position for employers when it comes to suspending employees and offers a view which is more employer friendly than that originally taken by the High Court. 

Employers should take time to look at the circumstances on a case by case basis and examine whether suspending the employee would be reasonable taking into account all of the available evidence. For example, considering: 

Why is suspension necessary? What purpose is the employer looking to achieve by suspending the employee, for example protection of evidence or other employees; 

Whether any, less onerous, alternatives are possible (such as the individual working from home, having access restricted to certain information or being temporarily redeployed); 

What evidence is available–are the allegations being made against an employee credible? A full judgment on the facts obviously will not be made until the conclusion of the disciplinary proceedings, however the employer should at least carry out some preliminary investigations prior to suspending the employee and be con dent there is some evidence to back up the allegations;

What effect the suspension may have on the employee. For example will suspension likely have a material impact on the employee’s reputation, either internally or externally? 

For any further advice or information please contact the team here at SFB Consulting. Our offices are based in Bishop’s Stortford and London, but we offer our services and consultancy UK wide. 

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