Can suspension amount to a breach of trust and confidence?

In the recent case of Agoreyo v London Borough of Lambeth, the High Court considered whether the suspension of a teacher amounted to a breach of trust and confidence.

Facts
Ms Agoreyo was a 43 year old teacher with 15 years' experience who started a fixed-term contract at a primary school in South London on 9 August 2012. Five weeks into the role she was suspended in response to allegations that she had used excessive force on three separate occasions to restrain two children with significant behavioural and emotional issues.

Before being suspended, Ms Agoreyo requested additional help to perform her role and it was agreed that a support plan would be put in place to minimise the disruption caused by the two children.

In the week leading up to her suspension, Ms Agoreyo's line manager investigated two of the allegations regarding her excessive use of force and concluded that there was no merit to the allegations.

Ms Agoreyo resigned on the same day that she was verbally suspended and denied ever receiving a letter confirming her suspension.

A claim was submitted to the County Court for breach of contract on the basis that the employer's decision to suspend Ms Agoreyo breached the implied term of trust and confidence.

The key issue was whether it was reasonable and necessary for the school to suspend the employee pending the investigation.

There was no evidence that the employee was asked for her response to the allegations or to suggest that an alternative to the suspension was considered.

The County Court judge held that the school was entitled and bound to suspend the employee after receiving allegations regarding her excessive use of force when restraining children.

Thereafter, Ms Agoreyo appealed against the decision to the High Court.

The Law
The implied term of mutual trust and confidence means that an employer must not, without reasonable and proper cause, conduct itself in a manner that is likely to destroy or seriously damage the relationship of trust and confidence.

In cases of serious misconduct, an employer may wish to suspend an employee who is being investigated.

Case law regarding breach of the implied term of mutual trust and confidence shows:
• that an employer must have reasonable and proper cause for suspending an employee such as a potential threat to the business or other employees.
• if there is no reasonable and proper cause, suspension could amount to a breach of the implied term of trust and confidence.
• suspension should not be a knee-jerk reaction and other alternatives should be considered.

Decision
The High Court held that the school did not have reasonable and proper cause to suspend Ms Agoreyo on grounds of their overriding duty to protect children and so the suspension amounted to a breach of contract.

The High Court stated that the school applied the suspension as a default position and it was a reflex reaction in response to the allegations. In the High Court's opinion, the school failed to prove that the suspension was a reasonable and necessary step.

The High Court made the following criticisms of the school's decision to suspend Ms Agoreyo:
• No attempt was made to establish the employee's version of the events.
• There was no evidence of considering alternative action from suspension.
• The supposed suspension letter did not explain why the suspension was necessary.
• The employee had been asking for additional support for weeks and she was suspended before all of the additional support measures had been put in place.

Comment
Christopher Meaden, a Solicitor in Lindsays Employment team, comments:

“This case illustrates that employers should adopt a cautious approach to suspending an employee in response to alleged misconduct.

“They should always consider the purpose and necessity of the suspension as well as whether there are any alternatives to suspension available. It is recommended that such considerations be fully documented.

“An employer should also consider whether they have any contractual or policy provisions which permit suspension or require that alternatives to suspension are considered.

“In order to avoid breaching the implied term of mutual trust and confidence in the employment contract, an employer must be satisfied that they have reasonable and necessary grounds for suspension.

“Suspensions should be kept as brief as possible and employees should be informed as soon as possible that they have been suspended. This should be followed up in writing, making it clear that the suspension is not itself a form of disciplinary action.”