SUSPENSION IS NOT A NEUTRAL ACT
Did suspension of a teacher purportedly to allow for a misconduct investigation to be carried out fairly, amount to a breach of the implied term of mutual trust and confidence? This was a question before the High Court in Agoreyo v London Borough of Lambeth.
A term of mutual trust and confidence is implied in all contracts of employment. An employer’s breach likely to destroy or seriously damage the relationship of trust and confidence, may entitle an employee to bring the contract to an end and claim constructive dismissal.
Suspension is not a neutral act. Prior to suspending an employee an employer must be satisfied that it has reasonable and proper cause for suspension in order to avoid breaching the implied term of mutual trust and confidence. Suspension must not be a “knee-jerk” reaction.
Ms Agoreyo, an experienced teacher, worked as a primary school teacher for the London Borough of Lambeth (Lambeth). She taught 29 six and five year olds; two of whom exhibited extremely challenging behaviour. Allegations were made against her that she had used unreasonable force with one of these two children on three occasions. Two incidents had been looked into by the Head, Ms Alder, shortly afterwards, who found that Ms Agoreyo used reasonable force. However, Ms Agoreyo was subsequently suspended by the Executive Head of the school, Ms Mulholland due to the allegations. Ms Agoreyo had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. Ms Agoreyo immediately resigned. Her resignation letter was on amicable terms, although it referred to “a lot of very unpleasant issues”. The suspension letter stated that the suspension was a “neutral act and … not a disciplinary sanction. The purpose of the suspension [was] to allow the investigation to be conducted fairly.” Ms Agoreyo claimed constructive dismissal. She did not argue that the allegations against her should not be investigated, but that the suspension was not reasonable or necessary for the investigation to take place.
Lambeth argued that they had an overriding duty to protect children. However, the High Court held that this could not stand as the stated purpose of the suspension was not to protect children but to ensure a fair investigation. The High Court held that the suspension was not a neutral act and considered that Lambeth’s decision to suspend was a knee-jerk reaction; suspension must not be the default position. Lambeth were criticised for attempting to ascertain Ms Agoreyo’s version of events, or Ms Alder’s knowledge of evidence, prior to Ms Mulholland taking the decision to suspend. The suspension letter did not explain why an investigation could not be conducted fairly without the need for suspension.
This case reinforces the need for employers to take care in determining whether it is necessary to suspend an employee in the wake of allegations of misconduct. Suspension should be the last resort and should not be a knee-jerk reaction. Employers should consider the true purpose for the suspension and whether there might be any alternative. It would be sensible to document any considerations. Including an express right in the employment contract to suspend employees may also assist.