In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
Dealing with serious allegations of misconduct is never an easy ride. There is rarely, if ever, such a thing as an “open-and-shut case”, and so the competing rights and balancing of risks and protections of the whole process is a veritable headache for any manager.
On the back of two relatively recent cases, we look at suspending employees during a disciplinary investigation and proceeding with this investigation when a parallel criminal investigation is taking place.
Suspending employees – is it ever fair?
The first case is Mayor and Burgesses of the London Borough of Lambeth v Agoreyo  EWCA Civ 322. The Court of Appeal considered whether the decision to suspend a teacher, pending an investigation into allegations of unreasonable force against two children, was a breach of trust and confidence.
Ms Agoreyo, an experienced teacher, started her job in a primary school in Lambeth on 8 November 2012. On 14 December 2012, Ms Agoreyo was suspended pending an investigation into allegations that she had used unreasonable force when dealing with two children in her class who exhibited “extremely challenging behaviour”. The letter confirming her suspension noted that “this 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.”
Ms Agoreyo submitted a letter of resignation to the school’s headteacher whilst still on the premises then later submitted a claim at County Court. She alleged her suspension was a breach of the implied duty of trust and confidence; the suspension was not reasonable nor necessary whilst the investigation took place. This was her only legal course of action as her limited employment history with the school meant that she did not have the requisite two years’ continuous service to bring an unfair dismissal claim.
The County Court held that the Council had been “bound” to suspend Ms Agoreyo given the seriousness of the allegations. The High Court rejected this and found that the suspension was a “knee-jerk” reaction and had been wrongly accepted as the default position.
The Court of Appeal upheld the County Court’s judgement agreeing that the Council had reasonable cause to suspend the teacher and that there was no breach. This was the crucial question to ask in each case when considering suspension. Each case should be taken on its merits and facts, and so there was no definitive answer as to what is reasonable cause. It was agreed that necessity was too high a test – an employer had a range of discretion and did not have to prove that there was literally no other option left to them.
Investigations and criminal proceedings
The second case is Mr M Cooper v National Crime Agency [EWCA] Civ 16. Whilst much of this case discusses the sharing of data between the National Crime Agency (NCA) and Sussex Police, which is specific to this case, there is some useful guidance in the EAT’s judgement regards employment investigations running alongside criminal ones.
The facts of the case are briefly as follows; Mr Cooper was arrested outside of work following an incident at a pub. After an investigation by NCA, Mr Cooper was dismissed as NCA held that, given the nature of their work, employees were expected to have a higher standard of behaviour when off duty than may normally be expected. Their argument being that regardless of the outcome of the criminal case, Mr Cooper’s general behaviour as found following the investigation was sufficient to warrant dismissal.
Mr Cooper’s complaint of unfair dismissal was based on the following 1) information should not have been shared between the police and the NCA regards his arrest and 2) his request to stay the NCA’s internal investigations pending the criminal ones should have been agreed. Point 1) is case specific and arguably only relevant in this case when dealing with two crime agencies. It is Point 2) that is of interest. What should employers do when the matter under investigation is similarly under investigation with the Police?
Essentially the employer has two possible routes.
If there is reasonable cause, the employee can be suspended pending the outcome of the criminal case. It is unlikely that a criminal investigation would itself be reasonable cause; it would most likely be one of various factors to be taken into account. If an employer chooses this route, it means that the employer is in no danger of prejudicing themselves with anything said at a disciplinary meeting before a court appearance. This was Mr Cooper’s argument.
Alternatively, the employer can, as in Mr Cooper’s case, chose to continue the disciplinary investigation and proceed before the conclusion of the criminal case. Whilst this would not resolve the issue of the employee prejudicing themselves at a disciplinary, a lengthy suspension could be problematic and costly.
In Mr Cooper’s case, the Court of Appeal upheld the EAT and Tribunal’s decisions that it was fair to refuse Mr Cooper’s request that the employment investigation be halted. The EAT noted that there is no rule that any internal processes must be delayed pending the determination of a criminal process. An employer will be given a wide discretion and permitted to balance the potential prejudice to the employee of proceeding against the alternative unfairness that may arise in lengthy delays. The case of Secretary of State for Justice v Mansfield in 2009 was referenced. Mr Mansfield was suspended for two and a half years pending a criminal investigation into allegations made when he was a prison officer. In that case, the EAT found that the postponement was entirely proper whilst the police gathering the evidence.
In a very recent case, decided in the last month, (North East Anglia Health Foundation Trust v Gregg  EWCA Civ 387) the Court of Appeal ruled that in almost all circumstances it was not necessary for an employer to postpone a disciplinary hearing pending the culmination of a Police investigation. Following the death of two patients, Dr Gregg faced disciplinary, regulatory and criminal investigations. He was suspended on full pay by his employer, the Trust and the regulatory body, the Interim Orders Tribunal, removed his licence and temporarily suspended him. The Court of Appeal said that the Trust was entitled to follow its contractually binding disciplinary process and that Dr Gregg was contractually bound to participate regardless of any other process. It was confirmed that any period of suspension should be paid. The only thing that the Court held should halt this contractual disciplinary process, was the threat of a real danger of injustice to Dr Gregg in the process. Interestingly, the Court then went on to note that the Trust was within its rights to sidestep the disciplinary process and consider terminating Dr Gregg’s contract on account of his licence being revoked. Without such a licence, he was unable to practice so unable to fulfil his contract.
Tips when walking this particular tight rope
- Suspend only as a last resort
Have you looked at other alternatives – can the individual be redeployed or given different duties?
- Suspend only when there is reasonable cause
What are the risks of not suspending – potential risk to the individual, other end users you are responsible for, reputational damage etc., waiting on police investigations – all of these to be taken in the round.
What is the risk of suspending – is it a knee-jerk reaction, what will be the effect on the reputation of the individual, how will it affect the business?
- Ensure a paper trail of all deliberations
How will you prove that there is reasonable cause if there is no paper trail to demonstrate this has been considered?
- If there are criminal proceedings, decide whether to suspend pending the outcome or continue with the disciplinary process
The employer has discretion as to whether to continue with the investigation when criminal proceedings are ongoing – there is no “hard-and-fast rule.”
If suspending employee – take note of balancing act above.
Weigh up the risk of pausing disciplinary process and risk of going ahead and document process and decision.
- Can you sidestep the disciplinary process?
If some other condition of employment has been removed or changed, i.e. criminal record, licence removed, DBS amended, then you can look at terminating the contract if the employee is no longer able to fulfil its contractual obligations. Obviously, if the employee has more than two years’ continuous service, you will have to prove the dismissal was for a fair reason, and you acted reasonably.
This process is complex and many-faceted, and we are aware that this brief note has only scratched the surface. Other issues such as “when do you get the police involved”, “what evidence can you share or request” etc. are all key and so if you want any further and more issue specific advice please contact .
We offer a range of training courses to assist you in carrying out investigations and disciplinary hearings. If you would like further information, please speak to your usual contact in our employment team or to Matthew Wort.
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