Rajveer is a Solicitor who works in the Employment team.
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Followers of our employment law updates may recall an update back in September 2017 regarding the High Court’s decision that suspension is not a neutral act but that it could be a repudiatory breach of contract. This resulted in many employers being concerned about suspending employees. As set out below, the position has now been clarified by the Court of Appeal and it brings some welcome news to employers.
The Court of Appeal held in Mayor and Burgesses of the London Borough of Lambeth v Agoreyo that an employer had reasonable and proper cause to suspend a teacher in order to investigate allegations that she had used unreasonable force against two children and thereby concluding that the implied term of trust and confidence was not breached.
Ms Agoreyo was an experienced primary school teacher. Two of Ms Agoreyo’s students displayed extremely challenging behaviour and allegations were made against Ms Agoreyo that she had used unreasonable force against one of these two children. The headteacher looked into two instances shortly after this and found that Ms Agoreyo had used reasonable force.
Following the third incident, however, Ms Agoreyo was suspended, and Ms Agoreyo resigned with immediate effect.
Ms Agoreyo brought a claim in the County Court for breach of contract against the local borough arguing that her suspension was a repudiatory breach of the implied duty of trust and confidence. The County Court held that the school had reasonable and proper cause for suspending her and dismissed her claim.
On appeal, the High Court held that the suspension was a breach of trust and confidence and it had not been necessary to suspend Ms Agoreyo as it was a ‘knee-jerk reaction’ to the ‘strident’ way in which the complaint against Ms Agoreyo had been phrased. The Borough appealed to the Court of Appeal.
The Court of Appeal upheld the Borough’s appeal and agreed with the County Court. The Court of Appeal held that the High Court had fallen into the trap of interfering with the trial judge’s findings of fact. Further, the High Court had erred by introducing a test of ‘necessity’ as the only relevant test is whether there was reasonable and proper cause to suspend the employee. As a result, Ms Agoreyo’s breach of contract claim failed.
Suspension should not simply be used as a “knee-jerk” reaction to an allegation, particularly where the allegation is serious and therefore likely to damage mutual trust and confidence. Employers should remember that before deciding whether to suspend an employee they should be satisfied that they have reasonable and proper cause to suspend, and therefore should ideally undertake a limited form of investigation first. It is also worth bearing in mind that a period of suspension should be kept under review so as to ensure it is as brief as possible. A failure to do so may also amount to a breach of trust and confidence.
If you are having an issue with an employee or an employer in the workplace and would like our help, Rajveer and her team are here for you. Please call them on 0113 849 4000 or email firstname.lastname@example.org