A recent judgment of the Court of Appeal (CA) in Yapp v FCO has highlighted the need for employers to consider their duty of fairness to their employees when considering whether or not to suspend.
Mr Yapp was the British High Commissioner in Belize who was withdrawn/suspended from his post after allegations of sexual misconduct and bullying of staff were made against him. This was followed by a lengthy disciplinary process during which the allegations of sexual misconduct were found to be untrue. The allegations of bullying were found to be true and for this Mr Yapp received a final written warning. Mr Yapp brought the following claims in the High Court:
- A claim for breach of contract on the grounds he suffered financial loss for the withdrawal/suspension from his position and the disciplinary process pursued against him; and
- A claim for breach of the FCO’s duty of care owed to him in causing him to suffer a psychiatric illness (depression).
In the High Court, it was held that the decision to withdraw/suspend Mr Yapp from his post was unfair and in breach of Mr Yapp’s employment contract. The FCO had an express obligation under the employment contract or an implied term to act fairly towards Mr Yapp when exercising their contractual power to suspend him. The crux of the decision was that the allegations were eventually deemed unfounded and malicious and that this could have been established much sooner. The judge said:
“Fair treatment in this case obliged the FCO to conduct some preliminary investigation of the allegations which Mr Courteney had levelled against the claimant before taking the decision to withdraw. In addition, fair treatment obliged the FCO to inform the claimant of the allegations and to take into account his critique of them.” (para.117)
The judge considered the argument of confidentiality considerations justified the decision not to tell Mr Yapp the nature of allegations made against him. He found that, in the present case, fair treatment “trumped” confidentiality – meaning Mr Yapp should have been told the nature of the allegations made against him and by whom so that he could respond and his response could be evaluated by the FCO as to the veracity of the allegations.
The CA agreed with the High Court – stating that the FCO should have treated Mr Yapp fairly and, before suspending/withdrawing Mr Yapp:
- Made further inquiries into the allegations made;
- Putt the allegations to Mr Yapp and allowed him to respond;
- Considered the motivation and/or the reliability of the complainant; and
- On the basis of 1-3 evaluated, whether the allegations justified withdrawing/suspending Mr Yapp.
This conclusion is important for you as an employee if you are facing suspension. A duty of fairness is owed to the employee in such circumstances and you are entitled a preliminary investigation by your employer into the allegations giving rise to the possibility of suspension.
The claim for breach of duty of care successful in the High Court but was dismissed in the CA because it was not reasonably foreseeable that Mr Yapp would have suffered a psychiatric illness by being withdrawn/suspended from his position and undergoing the subsequent disciplinary process.