By James Willis, Head of Employment at stevensdrake
Those of you with long memories may remember the case of Gogay v Hertfordshire County Council. It involved a care worker who was suspended from work because of an allegation of sexual abuse for which it turned out there was no real evidence. A court found the decision to suspend the employee to be a ‘knee-jerk’ reaction that fundamentally broke the terms of the contract of employment. As a result, the employee was able to claim financial compensation for employer’s breach.
Against this backdrop, it is interesting to look at the much more recent case of Agoreyo v London Borough of Lambeth, which was heard a little earlier this year.
The Agoreyo case concerned a teacher, who was accused of using inappropriate physical force, when seeking to manage two of the pupils in her class. Much like in the Gogay case, the teacher was suspended before any evidence to substantiate the allegations against her had been found, or even sought. Ms Agoreyo promptly resigned. Her resignation letter was polite and expressed gratitude for the guidance and support she had received during her employment. Nevertheless, she later brought legal proceedings against her employer, arguing that the decision to suspend her amounted to a serious breach of her contract of employment.
The employer’s case was that the suspension amounted to a ‘neutral act’. The employee would have had the proper opportunity to respond to the allegations as part of the investigation process, had she not resigned. The High Court judge disagreed and referred back to the decision in the Gogay case. Mr Justice Foskett concluded that a suspension in these circumstances was not a ‘neutral act’. He took account of the lack of evidence against Ms Agoreyo and the absence of any apparent attempt to obtain her version of events before implementing the suspension. In effect, he found that the suspension was precisely the sort of ‘knee-jerk’ reaction that the Gogay case had identified and condemned. As a result, the judge found in Ms Agoreyo’s favour and concluded that the employer had fundamentally broken the implied contractual term of mutual trust and confidence.
You might ask why we are commenting on this case, when it simply seems to reach the same conclusion as an earlier case decided roughly 17 years ago. Well the reason is that despite the earlier decision in Gogay, employers still commonly suspend their employees as a routine reaction to even the most minor allegations of misconduct. Admittedly, in many cases, the employer experiences no ill-effects. The employee takes it on the chin, accepts it as part of the process and gets on with it. Yet the potential for an employee to react differently and resign in response the suspension still exists.
In the circumstances, employers are well-advised to think carefully before imposing suspensions in cases such as these. Ask yourself whether the suspension is truly necessary? Is it proportionate? Would the employee be prepared to agree the arrangements for the suspension with you? It’s worth considering these points very carefully before issuing the suspension letter. You never know when you are going to be the one in a hundred who gets caught out!