Suspension of teacher was not a repudiatory breach
In the recent case of Mayor and Burgesses of the London Borough of Lambeth v Agoreyo, the Court of Appeal has held that a school had reasonable and proper cause for suspending a teacher in order to investigate allegations that she had used unreasonable force against two children, and therefore concluded that there was no breach of the implied term of trust and confidence.
The implied term of trust and confidence exists in all employment relationships between employer and employee and applies to both parties.
Ms Agoreyo, an experienced primary school teacher, taught a class of five and six-year-old children, two of whom exhibited extremely challenging behaviour.
Allegations were made against Ms Agoreyo that she had used unreasonable force towards one of these children on three occasions. It was claimed that she had ‘dragged’ a child out of the classroom and that she had carried a child out of the classroom. Two of these instances had been investigated by the head teacher who found that Ms Agoreyo had used reasonable force. However, following the third incident, Ms Agoreyo was suspended and resigned almost immediately. She subsequently brought a county court claim for breach of contract against the local borough, asserting that her suspension was a repudiatory breach of the implied duty of trust and confidence.
The county court rejected Ms Agoreyo’s claim, holding that the Borough ‘clearly had reasonable and proper cause to suspend the claimant’. It had an overriding duty to protect the children pending a full investigation of the allegations. That, in the county court’s view, could only be achieved by suspending A until the allegations were fully investigated.
Ms Agoreyo appealed.
The High Court
The High Court allowed the appeal (we previously reported on this decision in 2017 and you can read the case summary from then in full here) substituting a judgment that Ms Agoreyo’s suspension breached the implied term of trust and confidence. The court stated the suspension had been a ‘knee-jerk reaction’ to the ‘strident’ way in which the complaint against Ms Agoreyo (by a teaching assistant) had been phrased.
In reaching its decision, the Court observed that ‘the central issue is whether it was reasonable and/or necessary for [Ms Agoreyo] to be suspended pending… investigation’.
The High Court also took issue with the Borough’s assertion that suspension was a neutral act. The Court of Appeal in Mezey v South West London and St George’s Mental Health NHS Trust had made it clear that this was not the case, particularly in relation to the employment of a qualified professional in a function that was ‘as much a vocation as a job’.
It was explained that suspension changes the position from work to no work, and therefore will inevitably cast a shadow over the employee.
The Borough appealed to the Court of Appeal.
The Court of Appeal
The Court of Appeal allowed the appeal, holding that the High Court had interfered with the trial judge’s findings of fact (and his own assessment of those facts), rather than identifying any misdirection of law or other error of principle.
That there were ‘very strong reasons on the evidence’ (as the High Court put it) for finding the Borough in repudiatory breach of contract did not justify the court interfering with primary findings of fact. In other words, the factual findings made by the county court judge were open to him and he did not misdirect himself in law.
Further and importantly, it was identified that the High Court had been mistaken in their approach of introducing a test of necessity for suspending an employee.
It is now clear that the only test applicable to the decision to suspend is whether there was reasonable and proper cause to suspend the employee.
The Borough had also argued that the High Court was wrong to regard the act of suspension as anything other than a ‘neutral’ act. The Court of Appeal observed that the Acas Code of Practice on Disciplinary and Grievance Procedures provides no guidance as to whether suspension is a ‘neutral act’, merely stating that suspension should not be considered a disciplinary action, but confirmed that in any event, whether or not suspension is a ‘neutral act’ is unlikely to assist in resolving the crucial issue of whether there was/is reasonable and proper cause for that suspension in the context of the implied term of trust and confidence.
What should employers learn from this?
Employers should not simply suspend an employee as a precautionary act for investigation. Time should be taken to consider the employee’s comments as to the allegations and ultimately whether suspension can be avoided, such as moving the employee to another area of the business pending the outcome of the investigation.
Suspension is not a neutral act and it can be difficult for an employee to come back from a suspension without some damage to their reputation.
This is especially so if the employee has not actually committed any wrongdoing. It is likely that being suspended immediately will leave the employee feeling punished and ‘guilty until proven innocent’. As a result, the employee may feel that there is no longer mutual trust and confidence between the employee and employer.
If the employer is satisfied that it is reasonable to suspend the employee and the contract of employment permits suspension (care should be taken where it is not and legal advice should be sought), the employer should ensure that such a period of suspension is as short as possible and regularly reviewed. Suspension should not be a punishment but merely in order to carry out a full investigation promptly. Careful consideration should also be given as to what is told to work colleagues concerning the suspension so that the fairness of a disciplinary hearing is not prejudiced.
Suspension guidance for employers
In instances of serious misconduct, an employer may wish to suspend the employee under investigation. This may be appropriate, for example, where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work (for example because they may destroy evidence or attempt to influence witnesses). It may also be appropriate where relationships at work have broken down.
It is well established that any period of suspension should be as short as possible; that the decision to suspend should be kept under review and it should be made clear that suspension is not considered a disciplinary action. Suspension should not be seen by the employer at this stage as some form of punishment for the employee, but as a means of carrying out an investigation unhindered as quickly as possible.
Inevitably, however, an employee will often view the suspension as a punishment and, unless handled very sensitively, it may send a strong signal out to an employee that the outcome of any disciplinary hearing is a forgone conclusion.
Is the employer contractually permitted to suspend?
In the absence of an express contractual right to suspend, the employer will need to consider whether the nature of the employee’s work gives rise to an implied right to work. If there is such a right, suspending could be a breach of contract.
An implied right to work might arise, for example, in cases where the employee:
• Is otherwise deprived of the opportunity of earning remuneration such as shift premium or commission.
• Needs to maintain a public profile and needs to work for that purpose.
• Needs to exercise their professional skills frequently and needs to work for that purpose.
Considering the possible restrictions on the right to suspend, it is safest, from the employer’s point of view, if the employment contract explicitly provides a right to suspend the employee and a method of calculating pay during the suspension.
Even if the employer has a contractual right to suspend, this might be fettered by implied terms including the implied term of trust and confidence.
When will suspension be a breach of trust and confidence.
Suspension is a serious step and thought needs to be given as to whether it can be avoided. Prior to suspending, the employer must be satisfied it has reasonable grounds for the suspension in order to avoid breaching the implied term of mutual trust and confidence.
It is perhaps most important to beware of acting pre-emptorily without reasonable grounds in cases of serious or sensitive allegations involving senior employees, as the potential repercussions of such an employee being suspended without good cause will be more serious.
This is because, as was confirmed in the case of Mezey, suspension “is not a neutral act”.