Failure to follow correct procedure before suspending an employee can lead to claims of breach of contract
Normally, it will be reasonable to suspend someone an employer reasonably believes might have committed a disciplinary offence, but the recent Court of Appeal decision in Gogay v Bedfordshire County Council, 2000, illustrates the dangers of making a hasty decision to suspend.
Gogay worked as a residential care worker at the Gables, a small childrens’ home run by Hertfordshire County Council. When she joined the home in December 1994, she had no training and no previous experience of working with vulnerable children.
One of the children at the home (EL) suffered from Fragile X syndrome which meant she had learning and communication difficulties and an extremely low IQ. She had also been the victim of severe sexual abuse by her parents for which her father had been imprisoned for six years.
As a result of the trauma she had suffered, EL believed that any adult who befriended her wished to have a sexually abusive relationship with her. EL became obsessed with Gogay and acted in a sexually provocative manner towards her. Understandably, Gogay found this behaviour very worrying and stressful and requested that she should not be left alone with EL.
Agreeing with this suggestion, her area manager sought to reassure her by pointing out that no allegation had been made by EL against Gogay or any other member of staff. But in interviews with her therapist, EL alleged that on a number of occasions Gogay had touched her “wotsits”.
After receiving this information the council decided to investigate the allegations made by EL under section 47 of the Childrens’ Act. It also decided to suspend Gogay pending the outcome of that investigation.
Accordingly, Gogay’s senior manager advised her that she would be suspended on full pay pending the council’s investigation into what it said amounted to an allegation of “sexual abuse made by a young person in our care”. The manager stressed, however, that “the suspension is not a judgement on the outcome of the investigation but is a precaution to protect both you and the department”.
That investigation exonerated Gogay and about 10 days after her suspension, she received a letter informing her that “there was no case to answer” and that she was reinstated with immediate effect. But by this time Gogay was off work with clinical depression and was subsequently unable to return to work.
Gogay sued the council for the psychiatric damage she suffered on the basis that the council had acted in breach of contract and particularly its implied duty of trust and confidence when it suspended her.
The High Court judge upheld Gogay’s claim and awarded her a total of just over £26,000 in damages. The council appealed.
Court of Appeal decision
Dismissing the appeal, the Court of Appeal ruled:
• The judge was entitled to conclude on the evidence that the council was in breach of the duty of trust and confidence when it suspended Gogay on full pay.
• The decision to suspend Gogay was a “knee jerk” reaction to the allegations made by EL. The council should not have suspended Gogay without carrying some preliminary investigations into those allegations to determine precisely what EL was alleging. To describe the allegation as one of sexual abuse was “putting it far too high”.
• Although, in general, contractual damages will not be awarded for injury to feelings, the judge was entitled to award damages for loss of earnings and the personal injury suffered by Gogay as result of her unlawful suspension from duty.
There is a legal adage that “hard cases make bad law” and the court’s decision in this case is perhaps an illustration of that. But clearly the court felt there was a “stigma” associated with a disciplinary suspension where the allegation was being made by such an unreliable source.
By Anthony Korn, a barrister at 199 Strand Chambers