Where an employer suspends an employee without reasonable and proper cause this can amount to a breach of the implied term of mutual trust and confidence. Employers must, therefore, ensure that suspension is not a routine response or knee jerk reaction.
In the recent case of Mayor and Burgesses of the London Borough of Lambeth v Agoreyo the Court of Appeal upheld the County Court’s decision that suspension, in that case, was not a breach of the implied term of mutual trust and confidence. It warned, however, that the question of whether suspension amounted to a breach of the implied term was a question of fact and “highly context-specific”. Suspension must, therefore, be reasonable and proper in the particular circumstances of each case.
Ms Agoreyo was suspended from her role as a primary school teacher by the London Borough of Lambeth (“Lambeth”) in anticipation of a misconduct investigation. It was alleged that Ms Agoreyo had used unreasonable force towards two children in her class of 5 and 6 year olds on 3 separate occasions. In one incident she dragged a pupil on the floor in the presence of another member of staff and other children. The child was heard crying “help me”. In the second incident she dragged a pupil “aggressively” down a corridor whilst shouting at him. In the third incident she picked up a child who had refused to leave the class room, seemingly with the intention to carry him out, and the child screamed.
The school suspended Ms Agoreyo. The letter notifying Ms Agoreyo of her suspension confirmed that the purpose of the suspension was to “allow the investigation to be carried out fairly”.
Ms Agoreyo resigned from her role the same day and later claimed that her suspension amounted to a repudiatory breach of the implied term of mutual trust and confidence. She argued that the suspension was not reasonable or necessary for the investigation to take place.
The County Court held there had been reasonable and proper cause to suspend Ms Agoreyo and that her suspension did not constitute a breach of the implied term of mutual trust and confidence. It found that in the circumstances Lambeth was “entitled and indeed bound” to suspend Ms Agoreyo, due to the serious nature of the allegations and the involvement of young children.
On appeal, Ms Agoreyo argued that Lambeth could not have reasonable or proper cause to suspend her unless the suspension was “necessary”. The High Court reversed the County Court’s decision, holding that Ms Agoreyo’s suspension had, in its view, been adopted as a default position and a “knee jerk reaction” without consideration of the alternatives. It was not, therefore, reasonable or necessary in the circumstances.
Lambeth appealed and the Court of Appeal restored the County Court’s decision. It held that the High Court had erred in applying a test of necessity, where the crucial question was instead whether there had been reasonable and proper cause for the suspension. It held that this was a highly context-specific test and will depend on the facts in each case. Here, the Lambeth’s obligation to safeguard the interests of young children gave it reasonable and proper cause to suspend Ms Agoreyo and conduct the investigation in her absence. The suspension was not, therefore, a breach of mutual trust and confidence.
The Court of Appeal’s decision in this case serves as a useful reminder to employers of the need for reasonable and proper cause to suspend an employee. It also goes some way to show the type of situation in which suspension may be reasonable. However, although this allegations in this case were very serious, it may be that suspension would be considered reasonable in cases involving less serious allegations.
Caution should, however, always be exercised when suspending an employee and employers should ensure that there is a real and genuine need to suspend the employee on the particular facts of their own case. Whilst the ACAS Code makes it clear that suspension is not a disciplinary action employers should remember that it is not a neutral act. Suspension should, therefore, really only be considered as a last resort.