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Employment Law: Constructive dismissal

adrian_fryerIn order to suspend an employee fairly, an employer must have reasonable and proper cause for doing so. If not, suspension could breach the implied term of mutual trust and confidence and create a constructive dismissal. In London Borough of Lambeth v Agoreyo, the Court of Appeal looked at the decision to suspend a teacher and whether it resulted in the employee being constructively dismissed.

A teacher was alleged to have used unreasonable force against two children with challenging behaviour. She was suspended pending an investigation but resigned the same day. She said the suspension was not reasonable or necessary for the investigation to take place and was a breach of trust and confidence. The County Court did not agree. However, the High Court found that the suspension had been a knee jerk reaction which was not necessary and therefore breached trust and confidence.

The Court of Appeal disagreed. The High Court’s use of the ‘necessary’ test was wrong. The test was whether there was reasonable and proper cause to suspend. In this case, with serious allegations against young children, the County Court had been entitled to find that there was reasonable and proper cause for suspension. There had been no constructive dismissal.

Employers must consider suspension carefully. It should not be used routinely in every disciplinary case. Only suspend an employee if there is good reason to do so, for example to preserve evidence or protect other employees. Consider other options such as changing shifts or working patterns. Suspension should be a last resort, not a first step.