Case update (2): Rules of suspension

What do we already know?

We updated you in our September 2017 Newsflash Warning – take care with suspension! on the High Court’s decision in Agoreyo v London Borough of Lambeth. 

The High Court decided that a school acted in breach of the implied term of mutual trust and confidence when it suspended a teacher who was alleged to have used unreasonable force in trying to get two pupils with serious behavioural issues to behave.  The High Court said that the central issue is whether a suspension is reasonable and/or necessary.

What’s new?

The Court of Appeal has overturned the High Court’s decision.  The Court of Appeal has confirmed that the school did have ‘reasonable and proper cause‘ to suspend the teacher. Further, there is no requirement for a suspension to be ‘necessary‘.

Summary:  Can an employer suspend an employee without breaching the implied term of trust and confidence if it has ‘reasonable and proper cause‘ for doing so?

Yes, says the Court of Appeal in London Borough of Lambeth v Agoreyo available here.

Facts:  Ms Agoreyo, the employee, worked as a primary school teacher for the London Borough of Lambeth. She taught a class of about 29 children, aged between five and six years old. Two of her pupils had some serious behavioural issues and the employee made numerous requests to the school where she worked for additional support. This was eventually acknowledged by the school which started to put in place supportive measures for the employee.

However, before all the intended support measures had been put in place, the employee was suspended. This followed three incidents in which the employee used a degree of force to get the two pupils to behave. The allegation against the employee was that she had used unreasonable force. (Teachers are permitted to use reasonable force under the Education and Inspections Act 2006).

The suspension letter said all the usual things, including:

• the employee was suspended on normal pay;
• suspension was a precautionary act pending a full investigation into allegations, during which the employee would be given full opportunity to provide her account of events; and
• the suspension was “neutral and not a disciplinary action“ and was to “allow the investigation to be conducted fairly“.
• However, before the decision to suspend, the employee was not asked for her comments on the allegations, nor did the employer provide any evidence to suggest that it had considered other alternatives to suspension.

Later that day the employee resigned and brought a claim against the employer in the County Court for breach of contract.  She claimed her suspension was a ‘kneejerk’ response and thus a breach of the implied term of trust and confidence.

County Court decision

The County Court held that the employer was bound to suspend the employee after receiving reports of the allegations against her and that the employer had “reasonable and proper cause“ to suspend the employee on grounds of its overriding duty to protect children. The employee appealed to the High Court.

High Court decision

The High Court allowed the appeal and held that it had not been ‘necessary‘ to suspend the employee, particularly as:

• suspension took place only a few days after additional supportive measures had been put in place (and had not yet been fully implemented);
• there was no evidence of any attempt to understand the employee’s version of events prior to the decision to suspend;
• there was no evidence of any consideration of alternatives to suspension; and
• the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension

Therefore the suspension was a breach of trust and confidence.

Court of Appeal decision

The Court of Appeal overturned the High Court’s decision. The Court of Appeal held that the High Court had made errors of law by introducing a test of ‘necessity‘.

The Court of Appeal reaffirmed the established 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. The Court of Appeal held that the County Court had applied this test correctly.

Implications: This is a helpful decision for employers as it means consideration only needs to be given to whether there is ‘reasonable and proper cause‘ to suspend an employee (rather than whether it is ‘necessary‘).

However, whether an employer has ‘reasonable and proper cause‘ to suspend is highly fact specific.  We recommend that an employer takes the following steps when deciding to suspend:

• identify whether there is an express power to suspend employees in the employment contract. Although you will still need to think through whether there’s proper cause to exercise that power, it will be easier to defend a suspension in reliance on an express power;
• refer to your employee handbook to check whether it says anything about the circumstances in which suspension may be appropriate, and comply with any agreed procedures;
• carefully consider what the true purpose of the suspension would be and fully document the reasons for the suspension;
• avoid suspension as a “knee jerk“ reaction by considering the alternatives, such as reassigning the employee to another area of the business for a limited period, or putting them on a special project;
• wherever possible, speak with the employee before making a decision to suspend to understand their feedback on the allegations;
• consider what you can say on a neutral basis to the employee’s colleagues and your clients where appropriate. If possible, agree the response with the suspended individual;
• make sure you keep the employee informed about the investigation process regularly; and
• review whether suspension remains appropriate on an ongoing basis. Even if suspension were originally justified, an employee may subsequently claim that its length has caused them damage and would entitle them to claim constructive dismissal or breach of trust and confidence.