Anyone working in HR or employment law will have heard umpteen times the phrase “suspension is a neutral act” and, on the whole, it is.  But, as a recent case reminds us, not always…

Very little in employment law is absolute and mistakes can be made if we assume the rules are rigid.

This week, the High Court handed down its decision in the case of Agoreyo v London Borough of Lambeth.  Simone Agoreyo worked as a teacher at Glenbrook Primary School in Clapham for just over a month in late 2012 and was assigned a class including a couple of disruptive children with behavioural issues. On three occasions she used what she regarded as reasonable force on these children. The school appeared, initially, to agree her position regarding the first two incidents but, following the third, suspended her pending investigation, even though it had just produced a support plan for her which had not been in place at the time of the incidents. The suspension letter contained that well-worn phrase “The suspension is a neutral action and is not a disciplinary sanction”.  Ms Agoreyo resigned and subsequently claimed constructive dismissal.

Ms Agoreyo’s County Court claim failed but she was successful on appeal to the High Court. The Court held that the school had failed to follow statutory guidance, had failed to adopt even the most cursory of investigations into the incidents and had failed to consider alternatives to suspension. Suspension was not “necessary”. In the circumstances, suspension was not a neutral act but amounted to a breach of the implied term of trust and confidence.

Of course, we have known this was possible for a long time. As long ago as 2000, Julie Gogay won damages for psychiatric injury from Hertfordshire County Council after it suspended her as ‘a knee-jerk reaction’ from the children’s home in which she worked. The suspension was brought about because of a comment made by a disturbed child with learning difficulties and a history of sexual abuse which could (but almost certainly shouldn’t) have been understood to imply that Ms Gogay may have touched her inappropriately.  The suspension letter somewhat dramatically (and incorrectly) refered to ‘an allegation of sexual abuse’ which, understandably, triggered clinical depression in Ms Gogay.

Seven years later, we were reminded of this in Mezey v South West London and St George’s Mental Health Trust in which the Court of Appeal disagreed with the submission that suspension was a neutral act  “at least in relation to the employment of a qualified professional… 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.”

Despite this, we all (myself included) routinely trot out the mantra that suspension is a neutral act. These cases serve, however, to remind us that there are few absolute rules in employment law and almost everything is to be judged on its own merits.

This has advantages and disadvantages. Rigid rules have the benefit of certainty but risk injustice in individual cases.  Flexible rules allow for each case to be treated fairly but risk uncertainty.  Those of us unlucky to remember the Blair Government’s failed experiment of statutory dismissal procedures will recall a system in which process triumphed over common sense – it was horrible and the procedures were abolished.

Beware of assuming that anything is absolute and, before you dismiss, think twice.

2019 Post-script

The Agoreyo decision discussed above has now been overturned by the Court of Appeal who held that the proper test is not whether suspension is “necessary” but whether it is “reasonable”. Glenbrook Primary School’s decision had been reasonable. The appeal judges felt the question of whether suspension is a neutral act was unhelpful.

This decision should give some comfort to employers considering suspension but it doesn’t give carte blanche – Gogay and Mezey still stand.