Suspension must have “reasonable and proper basis” but is not a “neutral” act

The Court of Appeal has confirmed that a decision to suspend must have a “reasonable and proper basis” if an employer is to avoid liability for breach of contract.  This will be a matter for the trial judge to assess, and an appellate court should be slow to interfere with his or her conclusion.

This latest ruling from the Court of Appeal concerned a teacher at a London primary school who was suspended after allegations that she had used excessive force on three occasions towards two children in her class who had behavioural difficulties.  She resigned in response to her suspension, which she argued had been in breach of the employer’s duty of trust and confidence, which is an implied term in all employment contracts.  Her claim was dismissed by the County Court judge, but that decision was reversed on appeal to the High Court 18 months ago. 

The Court of Appeal has now overturned the High Court’s ruling and restored the decision of the County Court.  The Court of Appeal said that issue of whether a suspension is lawful needs to be assessed in the same way as for any other alleged breach of the implied duty of trust and confidence: is the action “without reasonable and proper cause”?  That is assuming that there is no express contractual procedure which governs the grounds for suspension (for example the procedure which applies to NHS doctors).  If so, the contractual requirements must also be satisfied.

Given the wide variety of situations in which an employer may wish to suspend, the Court of Appeal’s decision offers little in the way of clues about how to apply this legal test.  However there was one issue which it was able to clear up, concerning a frequently made assertion that suspension is a “neutral act”.  In this respect at least, the Court of Appeal agreed with the High Court judge and said it was wrong unhelpful to talk about a suspension in those terms. In all cases employers need to assess whether a planned suspension will be in breach of the implied duty of trust and confidence: asserting that it is a neutral act does not really take things much further.

Given that reasonableness is difficult to assess with any degree of certainty, employers may be better off playing safe and assessing whether a planned suspension is really necessary before deciding to act.  And of course before worrying about breaching the implied term of trust and confidence, they need to make sure they have an express power to suspend, and comply with any additional contractual provisions about the grounds for suspension and the procedure that needs to be followed.

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