Compassionate leave - suspension

Hotline advice expressed here, and in calls to us, is made in good faith to our members. Schools and colleges should always take formal HR or legal advice from their indemnified provider before acting.

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Q: I am an assistant head in an academy. I recently asked for, and was given, two days of compassionate leave, with pay, to assist my mother when she had an operation. The operation was cancelled on the first day of my leave, although we did not know this until midday on the day of the operation.

As she lives 300 miles away from me, I spent the time with her and did not travel home until the following day as planned. I did not disclose to the headteacher what had occurred. However, another member of staff knew about this and informed the headteacher. I have now been suspended for breach of trust while this is investigated, and before a probable disciplinary hearing.

A: In this situation, ASCL would automatically allocate a field officer to help a member as his or her employment could be at risk.

The first issue here is to determine whether or not suspension is justified and it may well be that it is not. In a recent case involving a teacher, Simone Agoreyo v London Borough of Lambeth (2017), the High Court judge determined on appeal that suspension is not a neutral act “in relation to the employment of a qualified professional in a function which is as much a vocation as a job”, noting that “suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence”.

The judge pointed out that this does not mean that suspension is never appropriate, simply that it is never neutral. Following on from this case, it seems unlikely that a suspension imposed simply to allow an investigation to be carried out will be reasonable unless the employer has explained why an investigation could not be conducted fairly without the need for suspension.

You should be afforded an opportunity to respond to the allegations/case prior to the suspension being imposed (although you may choose not to do so in the absence of a representative or evidence relied upon). You may also formally request your employer to outline precisely what (less draconian) alternatives to suspension were considered and why suspension was seen as being necessary as opposed to other options available.

Once the appropriateness and necessity of a suspension has been addressed, the usual disciplinary procedures as per any existing disciplinary procedure would apply.

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