Suspension of employee not presumed repudiatory breach

Agoreyo v London Borough of Lambeth

Suspension can be a breach of contract – but on each occasion it is a question of fact. A tribunal must consider whether the employer has ‘reasonable and proper cause’ to suspend, not whether it was ‘necessary’ to suspend the employee.

Background

Ms Agoreyo worked as a primary school teacher to a class of 5-and 6-year-olds. Two of the children had behavioural difficulties and it was alleged that Ms Agoreyo had used unreasonable force towards them on three occasions in trying to remove them from the classroom. The head teacher investigated two of these alleged incidents and found that Ms Agoreyo had used ‘reasonable force’. Following a further incident, Ms Agoreyo was told that she was suspended on full pay. The suspension letter stated that suspension was a precautionary act pending a full investigation into allegations, during which she would be given full opportunity to provide her account of events. It also stated that the suspension was a ‘neutral action and not a disciplinary action’ and was to ‘allow the investigation to be conducted fairly’. However, before the decision to suspend was taken, Ms Agoreyo wasn’t asked for her comments on the allegations, nor did the school provide any evidence to suggest that it had considered other alternatives to suspension. Later that day she resigned, apparently on friendly terms, but later brought a claim against her employer in the county court for breach of contract (breach of the implied term of trust and confidence), arguing that her suspension was not reasonable or necessary. (She didn’t have the required two years’ service to bring a tribunal claim for unfair dismissal.)

Ms Agoreyo lost in the county court which held that the school was ‘bound’ to suspend her after receiving reports of the allegations against her and that suspension was necessary because of the school’s overriding duty to protect the children pending a full investigation. Ms Agoreyo appealed to the High Court.

Allowing her appeal, the High Court held that suspension is not a neutral act (at least in the context of a qualified professional in a vocation) because it changes the status quo from work to no work, and inevitably casts a shadow over the employee’s competence and potentially impacts their future career prospects. The school wasn’t ‘bound’ to suspend Ms Agoreyo. It was not obvious that there was no alternative to suspension.

The High Court also disagreed that the school had ‘reasonable and proper cause’ to suspend Ms Agoreyo on grounds of its overriding duty to protect children. It had clearly stated in its suspension letter that its purpose was not to protect children but to ensure a fair investigation. The High Court also criticised the suspension procedure:

  • there was no evidence of any attempt to understand Ms Agoreyo’s version of events before deciding to suspend
  • there was no evidence of any consideration of alternatives to suspension, and
  • the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension

The suspension was a knee-jerk reaction, adopted as the default position, and was therefore a repudiatory breach of contract. The school appealed.

Court of Appeal decision

The Court of Appeal allowed the employer’s appeal and restored the decision of the County Court judge.

The Court of Appeal found that bearing in mind that the context was one in which the employer had to safeguard the interest of very young children the trial judge was entitled to reach the conclusion that the employer had reasonable and proper cause for the suspension in this case.

On the question of whether the act of suspension is a neutral act, the Court of Appeal did not make any specific findings because in this particular case it was not a relevant nor a particularly helpful question. The crucial question in this case was whether there had been a breach of the implied term of trust and confidence. The relevant question therefore was whether there was ‘reasonable and proper cause’ for the suspension, and not whether it was ‘necessary’. This was a highly fact-sensitive question and not a question of law.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/322.html

Comment

This decision does not break any new legal ground or overturn previous authorities which established that suspension should not be used as a ‘knee-jerk’ reaction or that suspension is not a neutral act at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job.

The message for HR professionals is that the act of suspending an employee should not be taken lightly and should not be viewed as the automatic default position, particularly where the employee is a qualified professional, but that in all cases there should be ‘reasonable and proper cause’ to justify any suspension.