Suspending employee is not necessarily a “neutral” act

A recent High Court ruling involving a primary school teacher is a reminder that suspension, if not handled correctly, can amount to a fundamental breach of contract. That can make it possible for an employee to resign in response and claim constructive dismissal.

In this case, a primary school teacher had been suspended because of allegations that she had used excessive force towards two children in her class. However there were a number of background factors which, in the judge’s view, should have alerted the employer to the fact that an immediate suspension was not appropriate in this case.

The teacher had been open about the difficulties she had been facing controlling two children who had significant behavioural difficulties. At the time of her suspension she had been waiting for additional support which the school was about to put in place. In addition, it was arguable that at least some of the incidents had already been investigated and she had been found not to have used excessive force.

This case does not establish new law, since there have been a number of decisions in recent years where employers have committed a breach of contract when suspending, particularly when the worker is a member of a profession. Ideally, in all cases before reaching a decision to suspend, the following questions should be addressed:

  • Do you have power to suspend the employee under their contract of employment or collectively agreed terms and conditions?
  • Have you spoken to the employee to establish their initial response to the allegations?
  • If there enough evidence to suggest that the allegations are sufficiently credible to merit further investigation?
  • Is suspension necessary, either to prevent further wrongdoing or to ensure a fair investigation?
  • If so, would a temporary transfer serve these objectives equally well?
  • If deciding to suspend, have you considered how enquiries about the employee’s whereabouts should be handled, bearing in mind how suspension is often regarded?

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