Can the suspension of an employee amount to a repudiatory breach of contract?
This was considered in the High Court case of Agoreyo v London Borough of Lambeth.
The term of mutual trust and confidence is implied into all employment contracts. A repudiatory breach of this implied term may entitle an employee to resign and bring a claim for constructive dismissal.
When considering allegations of gross misconduct, employers may suspend an employee whilst it conducts its investigations. The employer must be satisfied it has reasonable and proper cause for the suspension to avoid breaching the implied term of mutual trust and confidence.
The Claimant, Ms Agoreyo, was a primary school teacher working for the London Borough of Lambeth (the Respondent). She taught a class of up to 29 children aged five and six, two of whom had behavioural issues.
The claimant faced allegations that she had used unreasonable force towards the children, including allegations that she had dragged a child out of the classroom and along a corridor. The Executive Head of the School suspended the Claimant in response to these allegations.
The Claimant’s response was to immediately ask if she could submit her resignation letter, to which the Executive Head agreed. The Claimant wrote her letter of resignation while she was still on the school premises, in amicable terms but referring to ‘a lot of very unpleasant issues’.
The Respondent’s suspension letter set out the allegations and 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 in full.’
The allegations were escalated to the police who decided there was no basis for criminal proceedings. The Claimant was not barred from teaching by the Disclosure and Barring Service (DBS).
The Claimant subsequently challenged the lawfulness of her suspension, claiming it was a repudiatory breach of the implied trust and confidence as the suspension was not reasonable or necessary in order for the investigation to take place.
The High Court’s decision
The County Court in the first instance found the Respondent, was ‘bound’ to suspend the Claimant after receiving reports of the allegations against her because of its overriding need to protect the children. The Claimant appealed to the High Court, which allowed the appeal.
The High Court held that the County Court had erred in finding that there was no alternative to suspension. The finding of the Country Court that the Respondent had reasonable and proper cause to suspend the Claimant on the grounds of its overriding need to protect children also could not stand as the stated purpose of the suspension was not to protect the children but to ensure a fair investigation.
The High Court concluded that suspension was adopted by the Respondent as the ‘default’ position and was ‘largely a knee jerk reaction’. In reaching this conclusion, the court considered:
- There was no evidence the Respondent had attempted to establish the Claimant’s version of events prior to the decision to suspend
- There was no evidence of any consideration of alternatives to suspension
- The suspension letter did not explain why an investigation could not be conducted fairly without the need for suspension
The court held that in the circumstances, suspension amounted to a breach in the implied term of trust and confidence.
The court also found that suspending the Claimant within a few days of additional supportive measures being put in place, after the Claimant had been asking for help for several weeks, and when those measures had not yet been fully implement, constituted a further repudiatory breach of trust and confidence.
Advice for employers
Employers must take great care when considering whether to suspend an employee during an investigation of alleged misconduct. Suspension should never be an automatic or knee jerk reaction and employers must carefully consider what the true purpose of a suspension would be and whether there is any suitable alternative.
It is also important that employers fully document the reason for the suspension and also whether they had considered alternatives to suspension. It is not sufficient to include a statement in the suspension letter, as this case shows, that suspension is a neutral act and implies no criticism of the employee.