Constructive dismissal: suspension was not a neutral act but a repudiatory breach of contract

Published 5 September 2017

The High Court has held that the suspension, pending investigation, of a teacher accused of having used unreasonable force against children was a breach of trust and confidence.

The facts

Ms Agoreyo was an experienced teacher. She started working as a primary school teacher for the London Borough of Lambeth, teaching a class of five and six year olds, two of whom exhibited very challenging behaviour. She sought assistance from the school as she did not have experience of dealing with such behaviour previously. About five weeks after she started her new job, she was verbally told by the Executive Head Teacher that she was to be suspended for three incidents involving these children during which Ms Agoreyo used a degree of force. The allegations, set out in a suspension letter (although Ms Agoreyo disputed being given the letter before she had resigned) were that: she had aggressively dragged a child a few feet down the corridor, shouting at him; a child was dragged on the floor, out of the classroom door, in front of other children and was heard to cry "help me"; a child was told to leave a classroom and, when he refused, she had said "If you don't walk I will carry you out", and proceeded to pick him up while he screamed and kicked. The suspension letter stated that she was being suspended to ensure a fair investigation.

Straight after Ms Agoreyo had been told that she had been suspended, she asked if she could put in a letter of resignation. The Executive Head Teacher agreed. The resignation letter, composed when (according to Ms Agoreyo) she was at the school and upset, was handwritten, in amicable terms, but referred to "a lot of very unpleasant issues especially on the matter of proper communication that have led to this final decision…".

Ms Agoreyo did not dispute that the allegations needed to be investigated, but she claimed that the decision to suspend her pending the investigation was not reasonable and/or necessary, and that the suspension was a repudiatory breach of the implied term of trust and confidence. Her claim was brought as a breach of contract claim in the County Court because she had not been employed for two years.

The County Court judge found that, by resigning, Ms Agoreyo was "…in effect jumping before she was pushed…the most likely explanation for her resignation was that she was seeking to avoid a full investigation of the allegations…". It found that Lambeth was "bound" to suspend Ms Agoreyo after receiving reports of the allegations.

Ms Agoreyo appealed to the High Court. The High Court allowed the appeal. The judge commented that:

• the two children had exhibited extremely challenging behaviour prior to Ms Agoreyo becoming their class teacher;
• Ms Agoreyo was suspended before any efforts had been made to ask her about the allegations;
• Ms Agoreyo had expressed concerns to the Head Teacher about her ability to deal with the two children and her lack of training, but assistance was only provided days before the suspension and this plan had not been activated;
• the Head Teacher had already inquired about the first two incidents and had concluded that no more than reasonable force had been used;
• there was no evidence that consideration was given to any alternative to suspension before the decision to suspend was made and suspension was not necessary to facilitate an investigation.

The judge said that these points added up to the conclusion that suspension was adopted as the default position and as largely a knee jerk reaction, and alternatives were not considered. Suspension itself, against this background, was sufficient to breach the implied term of trust and confidence. However, even if this were not the case, suspension within a few days of being told, after several weeks of requests for help, about a plan to support her was a further reason for that term having been broken.

There was also argument in this case about whether the so-called "Johnson exclusion area" limits a claimant's ability to recover damages arising out of dismissal in breach of contract when the claimant does not have two years' service to bring an unfair dismissal claim. The High Court held that the civil courts, as opposed to the employment tribunal, can decide whether a repudiatory breach of contract does terminate employment. This is a matter of liability which a claimant is entitled to have a finding on. However, applying the Johnson exclusion area means damages would be limited to notice pay.

What does this mean for employers?

Case law has already established that:

• suspension is not a neutral act but a detrimental one;
• before suspending an employee, an employer must be satisfied that it has reasonable and proper cause to do so;
• suspension cannot be a routine response to the need for an investigation, particularly when very serious allegations of wrongdoing are made against an employee;
• suspension must not be a knee jerk reaction.

A contractual right to suspend may be helpful, but employers should not rely on the existence of such a clause to avoid successful claims of breach of contract, as a knee jerk response still needs to be avoided. Consideration of alternatives being considered, and documenting this, is still necessary.

Despite the limited compensation in these circumstances some claimants may still wish to bring a County Court claim for the moral satisfaction of a declaration that their employment was terminated in breach of contract, particularly if they are working in a regulated industry such as in the health service or financial services. Should they be successful in doing so, a claimant would be able to recover their costs from their former employer.

Agoreyo v London Borough of Lambeth