Teacher’s suspension breached the implied term of trust and confidence

The suspension of a teacher was a fundamental breach of the implied term of trust and confidence entitling her to resign and treat herself as constructively dismissed.

Speedread

In Agoreyo v London Borough of Lambeth, the High Court held that the suspension of a teacher, purportedly to allow for an investigation to be conducted fairly, was in reality “largely a knee-jerk” reaction. Suspension is not a neutral act and inevitably casts a shadow over an employee’s competence.  The employer did not first ask the teacher for a response to the allegations, consider any alternatives or explain why a fair investigation could not be conducted without suspension. In the circumstances, suspension was a breach of the implied term of trust and confidence entitling her to resign and treat herself as constructively dismissed.

Facts

Ms Agoreyo began working at a primary school teaching a class of five and six year olds, two of whom exhibited extremely challenging behaviour.   Allegations were made that she used unreasonable force towards one of the two children on three occasions in November and December 2012.  The allegations were that she had “dragged” a child out of the classroom or along a corridor and that she had carried a child out of the classroom.  The Head considered two of these incidents shortly afterwards and found that Ms Agoreyo had used reasonable force.  

On 14 December 2012, following a further incident, the Executive Head informed Ms Agoreyo that she was suspended. She immediately asked if she could resign.  A letter of suspension setting out the allegations stated that “suspension is a neutral act and is not a disciplinary sanction.  The purpose of the suspension is to allow the investigation to be conducted fairly.”  However, Ms Agoreyo argued that her suspension was a breach of the implied term of trust and confidence as it was not reasonable or necessary in order for the investigation to take place.  

The County Court disagreed, finding that Lambeth was “bound” to suspend her after receiving reports of the allegations against her and that suspension was necessary because of its overriding duty to protect the children pending a full investigation.  Ms Agoreyo appealed to the High Court.

Decision

The High Court allowed her appeal.  It found that suspension is not a neutral act and inevitably casts a shadow over the employee’s competence. The County Court had been wrong to find that Lambeth was “bound” to suspend her. It should not have discounted the Head’s previous investigation which found that reasonable force had been used.  In addition, suspension could not be justified on the basis of the overriding duty to protect children as this was not the reason given for the suspension.  

The High Court judge also made various other criticisms of Lambeth’s procedure, including that there had been no attempt to ascertain Ms Agoreyo’s version of events prior to suspension, no consideration of alternatives to suspension and no explanation in the suspension letter as to why an investigation could not be conducted fairly without the need for suspension. These factors indicated that suspension was adopted as the “default position” and was “largely a knee-jerk reaction”.  Suspension in this context was sufficient to breach the implied term of trust and confidence, which entitled Ms Agoreyo to resign and treat herself as constructively dismissed.

Implications

This case serves as a reminder to employers to take due care when considering whether to suspend an employee while investigating their alleged misconduct.  Suspension should not be a “knee-jerk reaction” and the employer must carefully consider whether suspension is necessary and whether there are any alternatives to suspension before deciding to suspend.  In practical terms, it would also be prudent for employers to keep a paper trail of these considerations.