16 February, 2018
In a recent Court of Appeal case (Simon Agreyo v London Borough of Lambeth (Appeal)) the court concluded that suspension should not be a 'knee-jerk' reaction and that alternative options that would be reasonable should be taken into consideration. This case has followed on from similar case law that has arisen previously. Suspension may be considered necessary in extreme circumstances, for example where the employee attempts to hinder the investigation by meeting or intimidating witnesses and therefore prejudicing a meaningful investigation from taking place.
Statutory guidance on suspension states:
Since this case, the practical implications that we have experienced in the context of Education are:
1. Who is the employer?
2. Who is entitled to suspend?
3. Is approval required?
4. If so, from whom and when?
Depending on the makeup of the school, whether it be maintained/community or academy etc. will determine the powers to suspend. If the employer is the Local Authority and not the governing body, the question is whether their approval is necessary before the employee can be suspended and it is these circumstances that are explored below.
Regulation 19 of the School Staffing (England) Regulations 2009 states that the Governing Body is able to suspend any person employed where they consider that suspension is required. The Local Authority is obliged to be informed of the decision, however they are not required to approve this decision.
On this basis, the decision to suspend does not need to be approved by the Local Authority, but Governing Bodies must be aware that they have a duty to inform the Local Authority of the employee's suspension and the reasons behind it as soon as possible.
• Identify whether there is an express power to suspend employees in the employment contract - it is easier to defend a suspension in reliance upon an express power.
• Refer to the employee handbook/procedures on suspension.
• Think of alternatives - could they be reassigned if it is a Multi-Academy Trust or could they be placed in another school temporarily. If not why not? Reassignment if MAT? Can put them in another school? if not why not?
• Speak with the employee before making a decision to suspend to understand their initial take on the allegations. Take a note of what they say and consider whether this would change the necessity for suspension.
• Agree something neutral to say to the employee's colleagues to maintain confidentiality.
• Keep the employee informed about the investigation process regularly.
• Review suspension on ongoing basis. The longer the suspension, the more risk involved. The suspension should be for no longer than necessary and should be brought to an end as soon as practically possible.
Suspension is a very significant decision and it should not be taken lightly in any event. We would always recommend that you seek legal advice before making your decision. If you are require any assistance, please view our Education section on our website. You can also contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.