October newsletter

Suspension may not always be a neutral act

In the case of Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB) the High Court found that the suspension of a Ms Agoreyo was a fundamental breach of the implied term of trust and confidence, which entitled the teacher Agoreyo to resign and claim constructive dismissal.

Ms Agoreyo was a primary school teacher to a class of 5 and 6 year old children. Two of these children had behavioural difficulties and allegations were made against Ms Agoreyo that she had used unreasonable force towards these children on three occasions in trying to remove them from the classroom. The Head teacher in the school carried out an investigation into two of these alleged incidents to find that Ms Agoreyo had used “reasonable force”.

Following a further incident, Ms Agoreyo was told that she was suspended and immediately asked if she could resign. A letter of suspension stated that “suspension is a neutral act and is not a disciplinary sanction. The purpose of the suspension is to allow an investigation to be conducted fairly.” Ms Agoreyo, however, felt that her suspension was a breach of the implied term of trust and confidence and that such a suspension was not necessary to enable a fair investigation to be conducted.

Ms Agoreyo brought a breach of contract case into the County Court, which she lost. They found that the school was “bound” to suspend her after receiving reports of the allegations against her and that suspension was necessary because of its overriding duty to protect the children pending a full investigation. Ms Agoreyo appealed to the High Court.

The High Court allowed her appeal.  It found that suspension was not a neutral act and that it had inevitably cast a shadow over the employee’s competence. The High Court further held that the County Court had been wrong to find that the employer was “bound” to suspend her. It should not have discounted the Head’s previous investigation which found that reasonable force had been used. In addition, though suspension could be justified on the basis of the overriding duty to protect children, this was not the reason given for the suspension – the reason given was to allow an investigation to be conducted fairly.

The High Court was also critical of the procedure adopted by the school including that there had been no attempt to ascertain Ms Agoreyo’s version of events prior to suspension, no apparent consideration of alternatives to suspension and no explanation in the suspension letter as to why an investigation could not be conducted fairly without the need for suspension. The Court found that these factors were suggestive that suspension was adopted as the “default position” and was “largely a knee-jerk reaction” to remove Ms Agoreyo from the workplace. Suspension in these circumstances was sufficient to amount to a repudiatory breach of the implied term of trust and confidence, which entitled Ms Agoreyo to resign and claim constructive dismissal.

A key consideration for the High Court in this case was whether it was reasonable or necessary to suspend Ms Agoreyo to allow an investigation to take place. In this case the High Court found that it was not. 

 

Please note, there is a traditional view in H.R. that if you are likely to dismiss someone then they should always be suspended.  However, this view has been eroded over the years and you can see from this case that suspension and the reason for it should be a last resort and due care and consideration should be given to the act and the reasons for it.  The Court made particular reference to the fact that Ms Agoreyo had a professional vocation and that consideration should also be given to the effect of suspension on her career and reputation. The High Court also advised that that documented records should be kept detailing what alternatives to suspension were considered and why these were not appropriate in this particular case.

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