Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB)

Why care?

A term of mutual trust and confidence is implied into all employment contracts. If the employer acts in such a way which is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee, then this may entitle an employee to bring the contract to an end.

In this case an employee, a teacher, claimed that the decision by her employer to suspend her was in breach of this implied term. The High Court agreed that the suspension of a teacher did amount to a breach of the implied term of mutual trust and confidence and that no thought had been given as to whether suspension was necessary.

The case

The claimant (Ms Agoreyo) was an experienced teacher who started work as a primary school teacher for the London Borough of Lambeth (Lambeth) in November 2012. This was for a fixed term teaching a class of about 29 five and six year old children, two of whom could have challenging behaviour.

Ms Agoreyo then faced allegations that she had used unreasonable force towards one of these two children on three occasions in November and December 2012 . The Head (Ms Alder) subsequently found that in two of these instances Ms Agoreyo had used reasonable force. However she was then suspended by the Executive Head of the school, Ms Mulholland following all of the allegations. The letter of suspension setting out the allegations stated:

“The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.” Although the matter was escalated, the police decided that there was no basis for criminal proceedings and the Disclosure and Barring Service did not bar Ms Agoreyo from teaching.

Ms Agoreyo resigned and claimed damages for breach of contract in the Central London County Court on the grounds that her suspension was a repudiatory breach of the implied duty of trust and confidence. The issue was not that the allegations against her should not be investigated, but that suspension was not reasonable or necessary in order for the investigation to take place. She did not have service for an unfair dismissal claim.

The County Court found that Lambeth was “bound” to suspend Ms Agoreyo after receiving reports of the allegations against her and the protection of children. Ms Agoreyo appealed against this finding. The High Court allowed the appeal. It found that the County Court’s reasoning was incorrect because:

  • it indicated no consideration of an alternative to suspension
  • it dismissed Ms Alder’s previous investigation (which found that reasonable force had been used) or ascertain Ms Agoreyo’s version of events prior the decision to suspend being taken
  • the reason for suspension on the facts of the case was to ensure a fair investigation, not due to an overriding duty to protect children; and
  • the letter did not explain why an investigation could not be conducted fairly without the need for suspension

The High Court noted the Court of Appeal decision in Mezey v South West London and St George’s Mental Health NHS Trust [2010] EWCA Civ 293) in which suspension was held not to be a neutral act, despite employers’ views that it can be. Suspension must not be a “knee jerk” reaction (Gogay v Hertfordshire CC [2000] IRLR 703).

The High Court went on to say that because the suspension came within a few days of Ms Agoreyo being told finally of additional support for assistance in her class but that those measures had not been fully implemented, this was a further repudiatory breach of contract by Lambeth.

What to take away

Where there is the possibility of disciplinary action against an employee, suspension should be considered in conjunction with other alternatives such as the employee remaining in post at work. Are they likely to interfere with the investigation or speak to potential witnesses? Employers should document their considerations as to whether or not suspension is appropriate or not. Consider including an express right to suspend the employee in an employment contract and avoid wording in employment documents to the effect that suspension is a “neutral act”.