Suspension as breach of trust and confidence

11 October 2017

Although a High Court decision, Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB) is a salutary lesson for those employers relying on the “neutral act” justification for suspension. Whilst not new law, the case is helpful as a reminder to employers that the mere right to suspend is only the first step in justifying suspension. Furthermore that the contemporaneous reasons for the suspension should be recorded (and be recorded accurately/fully).

The case was brought by Ms Agoreyo an experienced primary school teacher working with children with challenging behaviour. Allegations were made against Ms Agoreyo of using unreasonable force (dragging and carrying a child out of the classroom). Two of the instances had already been looked into by the Head, who found that Ms Agoreyo had used reasonable force. However, shortly thereafter, the Executive Head informed Ms Agoreyo that she was suspended on the basis of these allegations.

Ms Agoreyo almost immediately asked if she could resign and the Executive Head agreed. Ms Agoreyo’s resignation letter, written while she was still on the premises, was friendly but referred to certain very unpleasant issues. The suspension letter 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.

Ms Agoreyo argued her suspension constituted a repudiatory breach of the implied duty of trust and confidence. She argued suspension was not necessary for the allegations to be investigated. The County Court found the Employer was “bound” to suspend Ms Agoreyo after receiving reports of the allegations against her. Ms Agoreyo appealed against this finding.

The High Court allowed the appeal, stating that the Employer did not have reasonable and proper cause to suspend Ms Agoreyo. The reasons included:

1. the Employer’s reliance on its overriding duty to protect children could not stand, as the suspension letter recorded the reason for suspension was to ensure a fair investigation not protect children;

2. there was no evidence of any attempt to ascertain Ms Agoreyo’s version of events, or the Head’s knowledge of the events, prior to the Executive Head taking the decision to suspend;

3. there was no evidence of any consideration of any alternative(s) to suspension; and

4. the letter did not explain why an investigation could not be conducted fairly without the need for suspension.

The Judge felt suspension had been adopted as the “default position” and in the circumstances it breached the implied term of trust and confidence. It was clearly relevant that the Head had previously investigated two of the incidents and had not taken disciplinary action.