Date: 11th Jul 2019 By: Matt Smith, Blake Morgan LLP length: 10 minutes Tags: Legal Services
The Court of Appeal recently held, in the case of The Mayor & Burgesses of the London Borough of Lambeth v Agoreyo, that there is no breach of the implied term of trust and confidence where there is reasonable and proper cause to suspend. Further, there is no test of "necessity" in relation to suspensions.
Ms Agoreyo was recruited in the middle of term to teach a class of 26-29 pupils (aged 5 to 6). The class included two children with very challenging behaviour. She asked the head for help in managing the two children within a day of starting work. The head understood there was a problem and was putting support measures in place. During this period, on three separate occasions, Ms Agoreyo removed one or other of the children from the classroom using force. After only five weeks at the school, as a result, she was verbally suspended pending disciplinary investigations and by the time of her suspension, the headmistress had investigated at least two of the incidents, agreed that only reasonable force was used and pledged additional support. Ms Agoreyo resigned.
Ms Agoreyo did not have two years' service to bring Employment Tribunal proceedings, she brought a claim for damages for breach of contract in the County Court. She argued that the school had breached the implied term of trust and confidence. Her claim failed and the County Court held that there was reasonable and proper cause to suspend Ms Agoreyo and there was no breach of the implied term of trust and confidence. The school had an overriding duty to protect the children pending a full investigation of the allegations.
However, the High Court allowed Ms Agoreyo's appeal and considered whether it was "reasonable and/or necessary" to suspend. It concluded that suspension was not a "neutral act", that alternatives to suspension had not been considered and that no time had been allowed between implementing support measures and suspending Ms Agoreyo. Suspension was largely a "knee-jerk" reaction.
The Court of Appeal disagreed. It took into account the context, specifically, that the school had to safeguard the interests of very young children. The County Court was entitled to reach the conclusion that the employer had reasonable and proper cause for the suspension and the High Court was not entitled to interfere with that conclusion of fact. Further, the High Court incorrectly introduced a test of "necessity". The only test is whether there is reasonable and proper cause to suspend an employee. Due to there being reasonable and proper cause to suspend Ms Agoreyo there was no breach of the implied term of trust and confidence.
The ACAS Code of Practice on Disciplinary and Grievance procedures does not state whether or not suspension is a "neutral act". Rather, it states that suspension should not be considered a disciplinary action and this should be made clear to the employee. Interestingly, the Court of Appeal stated that "The question whether suspension is to be viewed as a neutral act is ultimately not a relevant question nor a particularly helpful one. The crucial question in a case of this type is whether there has been a breach of the implied term of trust and confidence. In the context of suspension that in turn requires consideration to be given to the question whether there was reasonable and proper cause for that suspension. This is a highly fact-specific question. It is not a question of law."
This case provides helpful clarity on what an employer should consider before suspending an employee and the safeguarding context in a school environment is also an interesting feature of the case. When dealing with disciplinary matters it is always important to bear in mind the principles of fairness as set out in the ACAS Code. Note that there is also separate ACAS Guidance on Suspension which gives examples of alternatives to suspension such as the employee temporarily being moved to a different area of the workplace, working from home, changing their working hours or working under supervision. Helpfully, the ACAS Guidance contains general information about how an employee should be suspended, how long the suspension should last, communication during a suspension and information on ending a suspension.
Author: Matthew Smith, Partner at Blake Morgan LLP. Blake Morgan LLP are a framework supplier on all lots for the Legal Services framework with the exception of Lot 4 (Northern Ireland), Lot 7 (Scotland), Lot 13 (Channel Islands) and Lot 14 (National One-Stop-Shop).
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.