Gogay v Hertfordshire County Council (2000 IRLR 703) CA
In this case a residential care worker obtained substantial damages from her employers following her wrongful suspension from work pending a Children Act investigation into allegations of abuse.
The investigation concerned a very disturbed child who had learning difficulties and a history of family abuse. During therapy sessions the child had made remarks which could have been interpreted as allegations of abuse. As a result a strategy meeting was called and it was decided to carry out a Children Act investigation. It was also decided to suspend the worker whilst that investigation was carried out. As a result of the investigation it was decided that there was no case for the worker to answer. However, following her suspension and the allegation contained in the suspension letter that the authority were "investigating allegations of sexual abuse" Ms. Gogay had suffered a severe psychiatric reaction. The medical evidence was clear that the suspension was a "substantial cause" of this reaction. There was no pre existing psychiatric history.
Ms Gogay brought a case based upon a breach of her contract of employment, and in particular the implied terms of trust and confidence. It is important to note that there was a specific term in the contract allowing for suspensions during such investigations.
Nevertheless the Court of Appeal held that suspending someone in these circumstances, particularly with the allegations made in the suspension letter, were calculated to destroy the trust and confidence between employer and employee and would, therefore, found a claim for breach of contract unless the employers could lawfully justify their actions.
There were two significant failures on the part of the Council. First, they had suspended before carrying out preliminary investigations to ascertain if there was a case to answer. The suspension commenced at the beginning of the investigation process and was held to be a "knee jerk reaction". Secondly, no realistic consideration was given to alternative employment during the period of the initial investigation. The Court of Appeal held that they did not believe that no alternative duties could be found during this period. The initial investigation lasted just over one month.
The employers also argued that Ms. Gogay was not entitled to damages but this was also rejected by the Court of Appeal. Psychiatric injury was not the same as injury to feelings and, provided there was appropriate medical evidence, the employee was entitled to damages for the loss of earnings and psychiatric injury she had suffered as a result of the unlawful suspension.
Although it might be argued that it was significant in this case that the result of the investigation was that there was no case to answer, it is extremely common for employers to suspend automatically if there is an allegation of gross misconduct. Clearly this case indicates that the reasons for and the timing of any suspensions in such cases should be questioned closely. But the distress alone caused by suspensions is not enough to found a breach of contract claim, there has to be real psychiatric harm.