Did a school commit a repudiatory breach of the implied term of trust and confidence, when it suspended a teacher so that it could investigate her alleged use of inappropriate force against two children? The Court of Appeal recently considered this question and has held that there is no requirement for a suspension to be ‘necessary’, the true test is whether the employer has a reasonable and proper cause to suspend.
Most disciplinary procedures will permit the suspension of an employee during the disciplinary process. However, because suspension inevitably casts a shadow over the employee’s competence, it should not be a routine or knee jerk reaction – rather, the power to suspend should be exercised infrequently. To avoid breaching the implied term of mutual trust and confidence, the employer must be satisfied that it has reasonable and proper cause for the suspension. If the implied term is breached, an employee will be entitled to resign and claim constructive unfair dismissal.
A primary school teacher, A, taught a class of 5-6 year olds, two of whom displayed extremely challenging behaviour. A was alleged to have used unreasonable force towards one child on three occasions, including allegations that A had dragged a child out of the classroom or along a corridor, and that she had carried a child out of the classroom. Two of these instances had been previously investigated by the head teacher, who found that A had used reasonable force. Following the third incident, which had been reported by a teaching assistant, A was suspended. A quickly resigned and brought a breach of contract claim in the county court arguing that her suspension was a repudiatory breach of the implied duty of trust and confidence. The county court held that the school had reasonable cause to suspend and rejected A’s claim.
A successfully appealed to the High Court, which substituted a judgment that A’s suspension had breached the implied term of trust and confidence, on the basis that it was a knee-jerk reaction to the strident way in which the teaching assistant had complained against A. The High Court considered that the central issue was whether it was reasonable and/or necessary for A to be suspended pending the disciplinary investigation.
Court of Appeal held
The Court of Appeal upheld the employer’s appeal and overturned the High Court’s decision. The Court of Appeal held that the High Court had made errors of law when it fell into the trap of interfering with the trial judge’s findings of fact and by introducing a test of ‘necessity’.
The Court of Appeal reaffirmed the orthodox view that there is no test of ‘necessity’ when considering suspensions; the employer need only show that it had a reasonable and proper cause to suspend the employee. Unfortunately, the Court of Appeal declined to clarify whether suspension is a ‘neutral act’, and preferred instead to place the main focus on the ‘reasonable and proper cause’ test to justify suspension.