Disciplinary Process
As part of a disciplinary process, whether to suspend an employee who is under investigation is a common query raised at Quest HR. The judgment of the Court of Appeal in London Borough of Lambeth v Agoreyo 2019 now provides authoritative guidance on such disciplinary suspensions.
Ms Agoreyo was employed by the London Borough of Lambeth as a primary school teacher. In her class there were two pupils who exhibited behavioural difficulties and whom she struggled to teach and had previously asked for staff support in managing these children.
Allegations were made that Ms Agoreyo had used physical force against one or both children to include dragging a child across the floor, dragging a child down a corridor while shouting at the child and picking up a child when they refused to leave the class.
Following these alleged incidents, Ms Agoreyo was suspended by the Head Teacher pending an investigation. She resigned the same day claiming breach of her employment contract, alleging that her employer had committed a repudiatory breach of the implied term of trust and confidence by suspending her.
At the County Court hearing, Judge Wulwik held that the Employer had “reasonable and proper cause” to suspend Ms Agoreyo given the need to investigate the allegations against her, and the Employer’s overriding duty to protect the children. There was therefore no repudiatory breach of the implied term of trust and confidence and the claim was dismissed.
High Court Appeal
Ms Agoreyo appealed to the High Court who found in her favour. Mr Justice Foskett held that the suspension was a “knee-jerk reaction” to the “strident terms” in which the allegations were put, which was contrary to the decision in Gogay v Hertfordshire County Council [2000] IRLR 703. The suspension was therefore a breach of the implied term of trust and confidence because it had not been “reasonable and/or necessary” for the employee to be suspended pending the investigation.
The judge also concluded that suspension was not a “neutral act”, relying on Mezey v South West London and St George’s Mental Health NHS Trust [2007] EWCA Civ 10.
An appeal to the Court of Appeal was made on the following three grounds:
- That Foskett J’s findings on whether there had been a breach of the implied term was a substitution of his own judgment for the trial judge’s findings of fact.
- That it was wrong to treat the suspension as anything other than a “neutral act”.
- That applying the test of whether the suspension was “reasonable and/or necessary” was the wrong test, as it assumed the act of suspension was sufficient to breach the implied term, and the correct test was whether the Respondent had reasonable and proper cause to suspend the Claimant.
The Court of Appeal unanimously concluded that the appeal succeeded on Grounds 1 and 3 and Ground 2 was rejected as the court did not consider the question of whether suspension was a “neutral act” to be helpful for determining whether there had been a breach of the implied term.
The Court also held that, whilst suspension was conduct which could constitute a repudiatory breach of the implied term of trust and confidence, there is no test of “necessity” in determining whether an employer is entitled to suspend an employee. In Gogay the suspension had been without reasonable and proper cause, but that did not mean that any suspension would be a breach of the implied term unless the employer could show it was necessary.
If this article raises any issues for you or your organisation, please speak to our Quest HR Advisors.
The contents of this article is intended for general information purposes only.
