Employment Matters - April 2019
DAC Beachcroft's Employment Matters focuses on some of the most interesting cases and events occurring within the Employment Law sector.
Published 12 April 2019
Ms Agoreyo was a primary school teacher for the London Borough of Lambeth. Two of her pupils exhibited very challenging behaviour. About five weeks after she started her new job, Ms Agoreyo was told by the Executive Head Teacher that she was to be suspended for three incidents involving these children.
The allegations, set out in a suspension letter, were:
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 resign, and the Executive Head Teacher agreed. In her resignation letter, Ms Agoreyo referred to "a lot of very unpleasant issues…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 the two years needed to bring a constructive unfair dismissal claim.
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. The High Court allowed Ms Agoreyo’s appeal against this decision, holding that the County Court had erred in holding that Lambeth was bound to suspend her. On the facts, the High Court held, suspension had been adopted as a “default position” and was largely a “knee jerk reaction”. In these circumstances, the High Court considered that Lambeth had breached the implied term of trust and confidence.
Lambeth appealed this decision, and the Court of Appeal reinstated the County Court’s judgment.
The Court of Appeal noted that the question of whether there has been a breach of trust and confidence is a question of fact, and highly context specific. Given that conclusions of fact can involve assessment of different factors, and weighing them against each other, different judges can legitimately make different findings. The High Court had impermissibly interfered with the County Courts’ findings, and it should not have substituted its conclusions for those of the County Court. On the evidence before it, the County Court had been entitled to make the findings that it did. The court had to assess whether Lambeth had responded to an allegation of possible misconduct in a reasonable and proper manner, so that matters could be investigated. If its response was reasonable and proper, it could not be said to have breached the term of trust and confidence. In this context, which was safeguarding the interests of very young children, the County Court judge had been entitled to find that Lambeth had reasonable and proper cause to suspend Ms Agoreyo.
The High Court had asked whether suspension had been “reasonable and/or necessary”. The Court of Appeal said that this was a mistake: there was no test of necessity.
This is a welcome decision for employers: a test of necessity is a very high threshold. However, employers must still act with caution when taking a decision to suspend an employee and consider whether suspension is a “reasonable and proper” step to take under the circumstances. They should consider alternatives to suspension, and document that they have done so and the reason why they have decided to suspend, and should emphasise to the employee that suspension is not disciplinary action.