In the recent case of Agoreyo v London Borough of Lambeth , the High Court found that the suspension of a teacher purportedly to allow for a misconduct investigation to be carried out fairly constituted a repudiatory breach of the implied term of trust and confidence between the employer and employee.
The term of mutual trust and confidence is implied into all contracts between an employer and employee. This effectively means that an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
In instances of serious misconduct, an employer may wish to suspend the employee who is being investigated. 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. Common concerns are where the individual may seek to influence witnesses and destroy evidence and suspension would prevent this.
Facts of the Case
The Claimant, Ms Agoreyo was a teacher at a primary school and taught a class of 5 and 6 year old children. She was suspended following an incident involving physical force towards two children at the school that had serious behavioural issues. The allegations that were made were that Ms Agoreyo had used unreasonable force towards the two children on three occasions in November and December 2012. Briefly, it was alleged that she had “dragged” a child out of the classroom or along a corridor and that she had carried a child out of the classroom. Two incidents had been considered by the Head Teacher of the school who had concluded that Ms Agoreyo had used reasonable force. On 14 December 2012, Ms Agoreyo was informed by the Executive Head that she was suspended due to the allegations. Ms Agoreyo immediately resigned and wrote her resignation letter whilst still at the school.
Ms Agoreyo argued that the suspension was a repudiatory breach of the implied duty of trust and confidence. She did not argue that the allegations against her should not be investigated, but that suspension was not reasonable or necessary in order for the investigation to take place. The County Court found that Lambeth was “bound” to suspend Ms Agoreyo after receiving reports of the allegations against her. Ms Agoreyo appealed against this finding.
High Court’s Decision
The High Court allowed the appeal.
The County Court’s use of the word “bound” indicates that the Court considered that there was no alterative to suspension. In the judgment, it was found that the suspension would have been a sufficient breach of the implied term relating to trust and confidence, because Ms Agoreyo’s line manager had already investigated at least two of the incidents and found it not to be worthy of disciplinary action and that reasonable force had been used.
In addition, suspension within a few days of additional supportive measures being put in place, after Ms Agoreyo had been asking for help for several weeks, and when those measures had not been fully implemented, constituted a further repudiatory breach of contract by the employer.
The decision provides a reminder that suspension is a detrimental step which must be justified, and ‘safeguarding’ concerns are not, necessarily, sufficient to warrant suspension. Employers need to consider all relevant circumstances.
Points to consider concerning suspension
Does the employee’s contract of employment include an express provision allowing you to suspend? You will of course need to exercise such a provision reasonably but it may assist in the defence of a decision to suspend
Check your staff handbook to see if there are any provisions relating to the suspension process and follow them
Before making the decision to suspend, consider carefully whether there are reasonable grounds to suspend and whether there are any other suitable alternatives such as requesting the employee to work in a different department or from home where appropriate
Before making the decision to suspend, speak to the employee in question to consider their initial response to the allegations
Decisions to suspend clearly need to be considered on a case by case basis. Employers should also be careful to take a consistent approach in similar scenarios to avoid employees raising grievances regarding unfair treatment or discrimination.
If the decision is made to suspend, be mindful of the following:
Pay – You cannot suspend without pay unless there is a right under contract enabling you to. Even then, employers should tread carefully to avoid a breach of trust and confidence
Communication – You should fully explain the suspension and investigation process to the employee so they understand what to expect and you should keep them regularly updated concerning the investigation and provide a timescale for the investigation and aim to adhere to the timescale provided;
Review – You should periodically review the period of suspension to consider whether the suspension should continue and keep a record of decisions made. Write to the employee when the suspension has been reviewed and explain the decision and set out the reason(s) why
Records – Keep written records of the process in case you need to rely on the records at a later date as part of any employment tribunal proceedings for example.
If you require advice concerning the suspension of an employee or any other employment matter please contact Farleys’ employment solicitors on 0845 287 0939 or submit your enquiry through our online form.