Friday, 15 September 2017

Suspension is not always a neutral act - HR Guide

Suspension of Teacher Not a Neutral Act

In the case of a teacher suspended because of the alleged force she used with two children, the High Court has ruled that the suspension did, in fact, amount to a breach of the implied term of mutual trust and confidence. This has come somewhat as a surprise to practitioners who have been advising for years that suspension is a neutral act and perhaps a useful tool to 'slam the breaks on' whilst an investigation can take place. So many times have we seen policies which state that suspension should be seen as a neutral act and will be used: 'If the allegation against the employee is serious or that the presence of such an individual will impede an investigation'.

In Agoreyo v London Borough of Lambeth however the Appellant had not been asked for her response to the allegations against pupils O and Z and she resigned the same day. The Appellant had appealed against an order dismissing her claim against the Defendant for damages for breach of contract.

The Appellant is a teacher and , at the time of the material events in November/December 2012, had about 15 years' experience of teaching  and had worked previously with children with special educational needs. On November 8th, 2012, she entered into a contract with the Defendant to work as a teacher at Glenbrook Primary School, South London,having been  interviewed only the day before.

The Appellant ceased working in this role on December 14th, 2012,some five weeks later. She was suspended that day because of the force she used in three incidents involving O and Z and she also "resigned" on the same day.

The Executive Head Teacher, in her letter to the Appellant,said :" I must write to inform you of a decision taken today to suspend you from duty on your normal rate of pay with immediate effect.This is a precautionary suspension, in line with disciplinary procedure pending  a full investigation into allegations".

The allegations were 1) that the Appellant was seen to "drag a child very aggressively,a few feet down the corridor whilst shouting at him. 2) that " a child was dragged on the floor,out of the classroom door by yourself in the presence of another member of staff and the rest of the children and was heard to cry "help me",and that 3) "a child with special educational needs was told to leave the classroom,as he was unable to follow your instructions.When he refused you were heard to state: "If you don't walk then I will carry you out." You then proceeded to pick up the child who kicked and screamed in the presence of all the class children..."

The letter to the Appellant added that " the suspension is a neutral action and not a disciplinary sanction.The purpose of the suspension is to allow the investigation to be conducted fairly".

The Court argued that the Tribunal did not appear to have reached a specific conclusion about how difficult the two children,O and Z were. "The conclusion was to the effect that other teachers had been able to deal with them and that the Appellant had been given all the support to which she could reasonably  have expected to be entitled".

"It seems tolerably clear", argued the Court," that O and Z  presented, both individually and in combination, as a challenge to any teacher when confronted with the task of teaching and controlling  over 20 other pupils  of a similar age.
"The Appellant's Counsel at the trial advanced the proposition that the "behavioural difficulties" of O and Z were "severe".

The Court concluded, in finding in the Appellant's favour, that there were very strong reasons on the evidence heard for finding that the Defendant had been in repudiatory breach of contract and that the Appellant's so-called "resignation" amounted to a constructive dismissal.

The features which distinguish this case perhaps from others are that firstly, the allegations against the teacher were very serious and secondly that a decision to suspend, which would after all prevent her from working and risk defaming her, was decided as a 'knee jerk reaction'; no other option other than suspension was explored by The Respondent. Finally, The Claimant was not interviewed before the momentous decision to suspend was taken.

This new case is perhaps not as revolutionary as it has been received in some quarters, there certainly are relevant precedents, such as the case of 'Prospects for People with Learning Difficulties v Harris UKEAT/0612/11/DMUKEAT/0612/11/DM. Here, an employee with learning difficulties was suspended without consultation 'for her own safety' on the basis that she might slip and hurt herself in her role. There had been no such slipping incident in 8 years of her employment. The EAT found, despite arguments that suspension was 'a neutral act' that such a suspension was capable of being an act of harassment.

These cases show the importance of when advising clients, that the decision to suspend should not be treated lightly,should always be fair and undertaken with consultation. The ACAS Disciplinary guide should also be considered and gives the following helpful guidance:

'Any suspension is brief, and is never used as a sanction against the employee prior to a disciplinary meeting and decision. Keep the employee informed of progress'.

Agoreyo v London Borough of Lambeth EWHC/QB/2017/2019

Monday, 4 September 2017

New Vento bands for injury to feelings awards

A response to the recent consultation has been issued by The President of The Employment Tribunal for those seeking guidance on how high to pitch an injury to feelings award.  The new bands will apply to any claims issued on or after 11 September 2017 and will be:-

lower band (less serious cases): £800 to £8,400
middle band: £8,400 to £25,200
upper band (the most serious cases): £25,200 to £42,000
exceptional cases: over £42,000