The Court of Appeal has ruled that suspension pending a disciplinary investigation does not breach an employer’s implied duty of trust and confidence, provided the employer has ‘reasonable and proper cause’. An employer does not need to establish that it is ‘necessary’ to suspend and it will not be determinative whether the act of suspension has been described as a neutral act (indeed the Court considered it was neither helpful nor relevant to consider the question of whether or not suspension can be described as a neutral act). Whether there is reasonable and proper cause will be highly-fact specific; it may be easier to establish this where the employee works with young or vulnerable individuals and there is a serious allegation supported by witness evidence to investigate (as in this case). The wider context beyond the fact and manner of suspension, including the events preceding the suspension and the extent to which a suspension is a ‘knee-jerk’ reaction, will be relevant. (London Borough of Lambeth v Agoreyo)
The case highlights the importance of considering whether there is sufficient justification for suspension; relevant factors will include the seriousness of the alleged misconduct and whether the investigation might be prejudiced (eg by interference with witnesses or destruction of documents) if the employee remains at work. An employer should also consider whether other options, such as working from home, would be feasible and appropriate, and document this consideration. Suspension should be for as short a period as possible, the decision to suspend should be reviewed regularly, and suspension should be paid unless there is an express contractual right to suspend without pay. Although not determinative of whether suspension is justified on the facts, it is also prudent to make clear to the employee that suspension is ‘neutral’ and not considered a disciplinary action. Care should also be taken when communicating with staff and clients about the reason for the employee’s absence, including to ensure this does not betray any assumption of guilt prior to conclusion of the disciplinary process.