UK: Employer Must Have Reasonable And Proper Cause To Suspend In Response To Allegations Of Misconduct

Before suspending an employee, an employer must be satisfied that it has reasonable and proper cause for the suspension in order to avoid breaching the implied term of trust and confidence.

Ms Agoreyo, an experienced primary school teacher employed by the London Borough of Lambeth, was suspended pending investigation following allegations that she’d used unreasonable force towards two 5-6 year olds, including dragging them on the floor and shouting at them. Her letter of suspension made clear that the suspension was a neutral act and was not a disciplinary sanction.

Before the County Court, Ms Agoreyo claimed that the suspension was a breach of the implied term of trust and confidence since suspension was not reasonable or necessary for the investigation to take place. But the County Court found that Lambeth had been “bound” to suspend her after receiving reports of the allegations. As there had been reasonable and proper cause, the suspension had not breached the implied term of trust and confidence.

The High Court disagreed, finding that on the facts suspension had been adopted as the “default position” and was “largely a knee-jerk reaction”. Lambeth appealed to the Court of Appeal which found that the High Court had been wrong to interfere with the County Court’s finding of facts and draw its own conclusions about the evidence.

The Court of Appeal said that the crucial question was whether there had been a breach of the implied term of trust and confidence and that depended on whether there had been reasonable and proper cause for the suspension. That was a highly fact-specific question and not a question of law.

Practical point
Whether it is appropriate to suspend is highly fact specific in each case; the employer’s decision should be based on what is a “reasonable and proper” response to the allegations. A suspension must not be a “knee-jerk” reaction, but it is also clear that the employer will normally be justified in suspending an employee when faced with serious misconduct allegations, particularly if there are no other roles or locations to which the employee might be deployed until the investigation is completed. To comply with the ACAS Code, when suspending for an investigation, the employer should make clear to the employee that suspension does not amount to disciplinary action.

Mayor and Burgesses of the London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322,