Suspension from work pending Investigation - Best Practices for Employers exercising disciplinary action
An employment contract is distinct from many other contractual engagements because of the disparity in the Parties' bargaining powers, as the Employer, in most cases, manages the Employee's affairs. This condition makes Employment Protection Laws and Trade Unionism necessary to strike a fair balance and ensure the relationship is mutually beneficial to all parties involved.
One of an Employer's core powers is to discipline an Employee in deserving cases, subject to observing certain legal standards and procedures. In exercising this power, an Employer is bound to balance the need to uphold ethical and organizational standards with the right of an Employee to work and fair hearing.
Suspension from work is one of the precautionary measures adopted by Employers in disciplining Employees for breaching terms and conditions of employment and maintaining the integrity of investigation of workplace misconduct. Over the years, the exercise of this power has been subject to abuse. While exercising the power to suspend an Employee may be necessary in certain circumstances, Employers must be cautious to observe certain legal and procedural guidelines as recklessness in exercising this power can occasion a breach of trust and confidence in the employment relationship and sometimes lead to an abrupt termination of the employment relationship.
Simone Agoreyo v London Borough of Lambeth
The story of Simone Agoreyo, a teacher employed by the London Borough of Lambeth at Glenbrook Primary School, a community school in Clapham Park, South London exemplifies the need for Employers to comply with all legal and policy guidelines before deciding to suspend an Employee from work. On commencement of her employment, Simone was hired to teach children in one of the two year 2 classes. Children between the ages of 5/6 years with 26-29 children in the class, two of whom had "behavioural, emotional and social difficulties" ('BESD'). The School admitted that the full condition of the children was not disclosed to Simone during the interview and onboarding process.
Simone’s suspension from Work
On the 5th December 2012, Simone was accused of using excessive force against 2 of the children in her classroom, a report from 2 of her colleagues to the management on the incident led to her suspension from work with immediate effect. According to the management, her suspension was a precautionary measure and an investigation into the allegation. Simone felt that her Employer breached the duty of trust and confidence by approving her suspension based on the report of her colleagues without listening to her side of the story or complying with section 93(1) of the Education and Inspections Act 2006 regulating the conduct of Teachers.
Simone resigned upon her suspension on the 5th December, 2012 and subsequently challenged her suspension by suing the Council for a breach of implied trust and confidence at the Central London County Court. The Court held that the school had ‘reasonable and proper cause’’ to suspend her after receiving reports of the allegations against her and that suspension was necessary because of the school’s overriding duty to protect the children pending a full investigation. There was therefore no repudiatory breach of contract and the claim was dismissed.
?Dissatisfied with this decision, Simone appealed to the High Court on the same grounds. The court had to reconsider whether it was reasonable to suspend her and whether the suspension was a neutral act.
For clarity on issues before the court, her suspension letter reads as follows:
"The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly. Every effort will be made to complete the investigation as quickly as possible. You will be informed immediately if at any stage during the investigation or if applicable at any stage of the disciplinary process it is considered appropriate that your suspension should be lifted. During the period of your suspension, information on the allegations will be thoroughly investigated. As part of these investigations, you will be invited to an investigation meeting where you will be given full opportunity to provide your account of the alleged events. Following the investigation, a decision will be made as to whether or not there is a case for you to answer and you will be informed accordingly. I assure you that the confidentiality of the process will be strictly maintained by management and would ask that you maintain the same confidentiality. You should not discuss the details of the allegations or your suspension with any person except those named in this letter or your chosen representative."
Mrs Mulholland- Executive Head Teacher- 5th December, 2012
The key issues the High Court was called to determine are whether Council observed the procedural fairness in deciding to suspend her from work and whether the applicable laws and policies were complied with. The Court held that suspension from work is not a neutral act and concluded that suspension should not be a “knee-jerk reaction” The suspension was, therefore, a repudiatory breach of the implied term trust and confidence because it had not been “reasonable and/or necessary” for the Claimant to be suspended pending the investigation.
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The council had not provided sufficient justification for the suspension, particularly regarding the lack of evidence supporting the allegations at the time of the suspension. The Court emphasized that suspensions should be used sparingly and only when necessary, ensuring that the Employee's rights are respected.
Although some aspect of the decisions of the high court was reversed by the court of the Appeal- The court of appeal maintained suspension was conduct which could constitute a repudiatory breach of the implied term of trust and confidence
Guidelines on Suspension of an Employee
?These guidelines are essential for ensuring the process is fair and complies with employment law standards.
The precautionary/administrative suspension is devised by some Nigerian Employers as a shortcut to constructive dismissal especially where the affected Employee is suspended indefinitely without pay. See Mr Adelabu Patrick Olasumbo v Ecobank Nigeria Ltd. (unreported ruling delivered on May 10, 2017, by Hon. Justice B. B. Kanyip in Suit No. NICN/LA/257/2016). The National Industrial Court of Nigeria held that indefinite suspension without pay amounts to an unfair labour practice.
Other Employers utilize suspension pending investigation as a way to provide a soft landing for the exit of some Employees. In January, 2024, President Bola Ahmed Tinubu suspended Minister of Humanitarian Affairs and Social Welfare, Dr Betta Edu following widespread anger over an alleged N585m scandal in her ministry. Details of the investigation are yet to be made public and the status of her employment with the Federal Government of Nigeria is unknown.
Simone's case illustrates the sensitive nature of the decision to suspend an Employee from work as Suspension in itself doubles as a disciplinary action. Suspension pending investigation should be considered as seriously as any other disciplinary action, such as warnings or dismissals because a reckless decision to suspend can amount to a breach of trust and confidence in the Employment relationship. This can also give rise to claims of wrongful and unfair dismissal.?
Employers should be cautious before suspending, It is appropriate to hear from the affected Employee before making any decision. An Employer should also give full consideration to whether there are any alternative courses of action other than the suspension to achieve its objective and keep records of such consideration having been given. These principles aim to ensure that suspensions are handled fairly and in a manner that respects the rights of Employees while also allowing Employers to conduct necessary investigations and exercise disciplinary powers.
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