This case of Agoreyo v London Borough of Lambeth is likely to be problematic for school suspensions.
The High Court has found that the suspension of a teacher could (and did) amount to a breach of the implied duty of trust and confidence.
In this case, there were allegations that the Claimant had used force on three occasions with two children (aged five and six). These children had severe behavioural issues. She had spoken to her line manager on two of these occasions. She was not asked for her response to the allegations and no alternative to suspension was considered. She resigned on the same day she was suspended.
The Court found that “Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence. Of course this does not mean that it cannot be done, but it is not a neutral act”. They were concerned that suspension was adopted as the default position and was largely a knee-jerk reaction to the accusations. They were also concerned that the employee was not asked to provide any response before the decision to suspend was taken.
So – how to proceed. It is clear that where (for instance) child protection issues arise – suspension is still likely to be needed. However, particularly where the individual is a teacher (the fact that she was a professional weighed heavier) – it is important that before suspending, schools:
1. Consider the alternatives – and highlight that they have considered the alternatives. Rather than “suspending” they could discuss with the union whether there are alternate duties that the teacher could undertake whilst the investigation takes place – are there home duties, or reduced duties that could be agreed (marking, preparation, planning, other work with the SLT (etc)) – all of that should probably be considered before suspension is imposed;
2. Discuss the allegations with the employee and ask for their response to them. Then take those into account before making the decision whether or not to suspend;
3. Have a good reason for suspending – i.e. not “it is our default…” but rather “mindful of the seriousness of the allegations, and our obligation to safeguard children in the school’s care (and we must minimize risk to those children), and to protect you from further allegations at this time, we have considered whether any alternative to suspension (such as a change to your duties or accompaniment by a member of the SLT) with both you and your union. However, in the circumstances, given the nature of the allegations and weighing up the competing interests and risks, I have made the decision to suspend you….”;
4. Make sure that all of this is documented;
5. Periods of suspension have got to be minimised. If courts are going to see suspension itself as a potential fundamental breach – then in cases where suspension is justified – they are going to want the period of suspension to be the absolute minimum necessary.
The reality is that if (guilty) employees choose to resign immediately on being suspended, then a tribunal should reduce compensation down to reflect their guilt in any event (albeit with different burdens of proof).
What this case does highlight is the importance to follow procedure and get advice before suspending a member of staff. If you need help with any suspension please contact one of the team on 01924 827869, they will be happy to help.