UK: Employer’s duty of trust and confidence – caution needed before suspending to investigate alleged misconduct

A recent High Court ruling serves as a reminder to employers not automatically to suspend an employee accused of misconduct while an investigation takes place. Employers should first seek the employee’s response to the allegations and consider whether suspension is actually necessary in order to carry out a fair investigation (or for other legitimate reasons) or whether there may be other options such as a temporary reassignment. It may also be relevant whether the contract of employment or handbook policies give an express right to suspend and set out when suspension may be appropriate.

If an employee is suspended, ideally the letter should explain why this is necessary and a neutral communication to colleagues and clients should be agreed with the individual. The employer should also keep the employee informed about the investigation process and review whether suspension remains appropriate on an on-going basis, ensuring that the investigation is completed within a reasonable period.

In Agoreyo v London Borough of Lambeth, the failure to seek the employee’s response to the allegations (that as a teacher she had used unreasonable force on a child) and consider alternatives before suspending was held to be a breach of the implied duty of trust and confidence, entitling her to resign and claim constructive dismissal. It was relevant that the head teacher had already investigated two of the three allegations and determined them not worthy of disciplinary action, and the school had promised but not yet fully implemented supportive measures to assist the employee with handling the children in question. The employer could not contend that the suspension was justified by its overriding duty to protect children, given that the stated purpose of the suspension was not to protect children but to ensure a fair investigation. Further, the fact that the suspension letter stated that suspension was a neutral act and implied no criticism of the employee did not prevent the breach.

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