During the Covid-19 pandemic, much of the focus has been on shoring up existing delivery and, where possible, extending arrangements if it is not possible to re-procure.
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.
Suspending employees – is it ever fair?
The first case to consider 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 that unreasonable force was used 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 head whilst still on the premises, then later submitted a claim at the 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 wrongly been accepted as the default position.
The Court of Appeal upheld the County Court’s judgment, 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 no other option left open 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 Employee Appeal Tribunal (EAT)’s judgment with regards to employment investigations running alongside criminal ones.
The brief facts of the case are Mr Cooper was arrested outside of work following an incident at a pub. After an investigation by the NCA, Mr Cooper was dismissed as the 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: (i) information should not have been shared between the police and the NCA with regards to his arrest and (ii) his request to stay the NCA’s internal investigations pending the criminal ones should have been agreed.
Point (i) is case-specific and arguably only relevant in this case when dealing with two crime agencies. It is point (ii) 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 to take.
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 the 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, choose to continue the disciplinary investigation and proceed before the criminal case being decided. 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.
In a more recent case (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.
Tips when walking this particular tightrope!
- 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 – take all of these into consideration.
- What are the risks 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 that this has been considered?
- If criminal proceedings are in progress, decide whether to suspend pending outcome or continue with the disciplinary process
- Employers have discretion as to whether to continue with an investigation when criminal proceedings are ongoing – there is no “hard-and-fast rule”.
- If suspending an employee, take note of the balancing act above.
- Weigh up the risk of pausing the disciplinary process and the risk of going ahead and document the process and decision.
- Can you sidestep the disciplinary process?
- If some other condition of employment has been removed or changed, i.e. criminal record status, licence removal, Disclosure and Barring Service amendment, then you can look at terminating the contract if the employee is no longer able to fulfil their contractual obligations. 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.
For more information
Our employment and regulatory team regularly advise on handling disciplinary proceedings and safeguarding and criminal investigations. If you require advice on such issues, please contact our regulatory team lead, Tim Coolican.
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