You may remember that we reported on the case Agoreyo v London Borough of Lambeth where the High Court held that the suspension of a teacher to allow for a misconduct investigation was not a neutral act and amounted to a breach of the implied term of mutual trust and confidence. This case was appealed to the Court of Appeal which has overturned the decision.
Ms Agoreyo was a teacher in a primary school in the London Borough of Lambeth (‘Lambeth’). She taught a class of 29 five and six year olds and it was alleged that Ms Agoreyo had used unreasonable force against two children on three different occasions, including an allegation that she had dragged one child several feet down the corridor. Lambeth suspended Ms Agoreyo in light of these allegations pending an investigation. Ms Agoreyo resigned from her post but challenged the lawfulness of her suspension as being a repudiatory breach of the implied duty of trust and confidence owed by Lambeth. She argued that the suspension was unreasonable and unnecessary in order for the investigation to take place. The case was first heard before the County Court which found in favour of Lambeth. Ms Agoreyo appealed to the High Court which held that the decision to suspend was not a neutral act and had been a “knee-jerk reaction”. It therefore found that suspension was a breach of the implied term of trust and confidence.
On appeal, the Court of Appeal overturned the decision of the High Court. The Court of Appeal considered the issue of whether suspension is a neutral act but ultimately determined that this was not a relevant or helpful question. Instead, it said, the crucial question is whether there has been a breach of the implied term of trust and confidence and that depended on whether there had been reasonable and proper cause for suspension. It noted that the circumstances involved in this suspension related to safeguarding the interests of very young children. For that reason, the Court of Appeal held that Lambeth had reasonable and proper cause to suspend Ms Agoreyo.
What does this mean for you?
Whilst the Court of Appeal found in favour of the employer here, it remains a cautionary tale to employers considering suspension in cases of alleged misconduct. The Court of Appeal made it very clear that each case is highly fact specific. It commented that it is possible for an employer to breach the implied term of trust and confidence by suspending an employee in order to investigate alleged misconduct. The test for a breach is whether the employer has acted “without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. Accordingly, an act of suspension can constitute a breach of the implied term where it, by itself or in combination with other acts or omissions by the employer, meets that test.
Even where the alleged misconduct is extremely serious, suspension should not be the default position. In every case you must carefully consider the issues and decide whether you have reasonable and proper cause to suspend an employee. In practice, this should be recorded in writing to provide evidence that your decision to suspend was only made after careful consideration of all the facts, including whether there were any reasonable alternatives to suspension (such as redeployment to another role or area of the business).
Tozers’ top tips
Here is a reminder of our top tips for dealing with potential suspension situations:
- Never automatically suspend an employee, even in the case of alleged serious misconduct;
- Consider the facts of each case and ask yourself whether you are satisfied that you have reasonable grounds for the suspension;
- Be clear as to what your reasons for suspension are – generally suspension will only be appropriate where there is an allegation of gross misconduct, the circumstances of which you consider make it inappropriate for the employee to remain at work, or where it is necessary in order to properly carry out a disciplinary investigation;
- Clearly set out in writing your thought process and reasons for suspension and keep this on record;
- Consider whether there are any alternatives to suspension – for example placing the employee temporarily in another part of the business or at a different location;
- Explain to the employee in writing why you have made the decision to suspend and make it clear that the suspension itself is not considered a disciplinary action;
- Comply with your policies and procedures relating to suspension and ensure that these are applied consistently – for example if two employees are involved in an alleged misconduct incident you should not suspend only one of them without good reason;
- Any period of suspension should be regularly reviewed to consider whether it should be lifted and the review outcome communicated to the employee. Do not continue the suspension indefinitely.
Find out more
If you would like further advice you can contact our specialist employment team.