The High Court case of Agoreyo v London Borough of Lambeth, available here, is clear on this matter. In August 2017 they set out that suspension is not a neutral act and an improper suspension can amount to a breach of the above implied term. They also said that a breach could amount to a ‘repudiatory breach’, i.e. be sufficient in itself to destroy the employment relationship and entitle the employee to bring a claim.
The background
Mrs Agoreyo (who was the employee) worked as a primary school teacher for the London Borough of Lambeth. A number of her pupils had significant behavioural issues and she had made numerous requests to the school for additional support. However, before all the measures could be put in place Mrs Agoreyo was suspended. This followed three incidents where she had to use a degree of force to get two of these pupils to behave. The allegations suggested that the degree of force used went beyond those considered reasonable under the Education and Inspections Act 2006.
The suspension letter said:
- the employee was suspended on normal pay;
- suspension was a precautionary act pending a full investigation into allegations, during which the employee would be given full opportunity to provide her account of events; and
- the suspension was a “neutral action and not a disciplinary action” and was to “allow the investigation to be conducted fairly”.
However, what sets this case apart, was that, before the decision to suspend, the employee was not asked for her comments on the allegations. Similarly, her employer failed to suggest that it had considered other alternatives to suspension.
Mrs Agoreyo resigned and brought a claim against the employer in the County Court for breach of contract. She argued that suspension was not reasonable or necessary.
Whilst the initial County Court hearing felt that London Borough of Lambeth was bound to suspend Mrs Agoreyo, after receiving reports of the allegations against her, and had “reasonable and proper cause” (to protect the children), Mrs Agoreyo appealed to the High Court.
The High Court disagreed. They felt that the employer was not bound to suspend Mrs Agoreyo and did not feel that it was obvious that there were no other alternatives. Furthermore, the employer had clearly stated in its suspension letter that its purpose was not to protect children but to ensure a fair investigation.
The High Court found that:
- there was no evidence of any attempt to understand the employee’s version of events prior to the decision to suspend;
- there was no evidence of any consideration of alternatives to suspension; and
- the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension
As a result they concluded that, given the potential stigma associated with suspension and the potential impact on future career prospects, suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher.
The suspension amounted to a breach of the implied duty of trust and confidence.
Employers must remember that even (in cases where the conduct is extremely serious, suspension must never be a knee-jerk reaction and the employer must carefully and pro-actively consider what the true purpose of a suspension would be and whether there might be any alternative.
Our advice is always to contact a qualified professional to help support and guide through disciplinary investigations and matters. You can contact Alison here.
