Whether or not to suspend an employee pending an investigation into allegations of misconduct is a serious decision to make, one that many employers often find difficult.
The Court of Appeal recently held, in the case of The Mayor & Burgesses of the London Borough of Lambeth v Agoreyo, that there is no breach of the implied term of trust and confidence where there is reasonable and proper cause to suspend. Further, there is no test of “necessity” in relation to suspensions and it had been wrong to ask whether it was reasonable and/or necessary to suspend the employee. The only test is whether there is reasonable and proper cause to suspend.
The Court of Appeal overturned the High Court decision and restored the decision of the County Court and the decision provides useful guidance for employers.
Ms Agoreyo was a teacher with 15 years’ experience. She was recruited in the middle of term, on 8 November 2012, to replace a teacher of 5-6 year-olds. The class of 26-29 pupils included two children with behavioural, emotional and social difficulties. They had very challenging behaviour that previous teachers had struggled with but which they had managed by calling another adult into the class to ask the misbehaving child to leave. Ms Agoreyo apparently did not use this method. However, within a day of starting work she began to ask the headmistress for help in managing the two children. During the next three to four weeks, communication between them showed that the headmistress understood there was a problem and was putting measures in place to support Ms Agoreyo.
During this period, on three separate occasions, Ms Agoreyo removed one or other of the children from the classroom using force, allegedly including dragging one out and another time picking up the child and taking them outside the classroom. As a result, on 14 December 2012, after only five weeks at the school, she was verbally suspended pending disciplinary investigations.
Ms Agoreyo alleged she did not see a copy of the suspension letter until much later and she had already resigned on the day she was told of her suspension. The school’s 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.”
Teachers are allowed to use reasonable force to prevent a pupil from committing an offence, causing damage or injury, or jeopardising good order and discipline at school. Ms Agoreyo alleged she had only used reasonable force. By the time of her suspension, the headmistress had investigated at least two of the incidents, agreed that only reasonable force was used, and pledged additional support.
As she did not have two years’ service to bring Employment Tribunal proceedings, Ms Agoreyo brought a claim for damages for breach of contract in the County Court. She argued that the school had been in repudiatory breach of contract, having breached the implied term of trust and confidence. The test for this is that there has been conduct by the employer which destroys or seriously damages the relationship of trust and confidence and which is without reasonable and proper cause.
The issues considered by the County Court included:
- Was there reasonable and proper cause for suspending Ms Agoreyo from her employment on 14 December 2012?
- If there was no such reasonable and proper cause, was the suspension a breach of the implied term of trust and confidence?
Ms Agoreyo accepted in her evidence that the allegations of inappropriate force were serious allegations and a full investigation was not only reasonable but was necessary. The County Court judge held that there was reasonable and proper cause to suspend Ms Agoreyo. The school had an overriding duty to protect the children pending a full investigation of the allegations. That could only be achieved by suspension of Ms Agoreyo until the allegations were fully investigated. As there was reasonable and proper cause to suspend, the suspension was not a breach of the implied term of trust and confidence and the case was dismissed on 12 January 2017.
On 15 August 2017, the High Court upheld Ms Agoreyo’s appeal.
The High Court judge considered that, “The central issue is whether it was reasonable and/or necessary for the [Respondent] to be suspended pending that investigation.”
It concluded that suspension was not a “neutral act”, that alternatives to suspension had not been considered and that no time had been allowed between implementing support measures (to help Ms Agoreyo deal with very difficult children) and suspending her. Suspension was adopted as the default position and largely as a “knee-jerk” reaction.
Against that background, suspension would have been sufficient to breach the implied term relating to trust and confidence, particularly when at least two of the incidents had been investigated and not considered worthy of disciplinary action. In addition, suspension within a few days of being told about the introduction of a support scheme and of further induction because of the problems with the two children were other reasons for the implied term having been broken, particularly when the support scheme had not been fully implemented.
Court of Appeal
The Court of Appeal allowed Lambeth’s appeal and restored the County Court decision.
Lambeth had three grounds of appeal and argued that the High Court judge:
- Erred in law by impermissibly substituting his own judgment for the trial judge’s findings of fact.
- Adopted an erroneous approach in law to the question of suspension.
- Was wrong to regard the act of suspension as anything other than a “neutral act”.
Was the High Court entitled to interfere with the judgment of the County Court?
The Court of Appeal stated that Courts exercising an appellate jurisdiction must not interfere with the lower court’s findings of fact unless no reasonable judge could have made those findings but the High Court judge had done that in this case. It stated that:
“It is important not to over-complicate cases such as this one. In this case, it was obvious (and indeed accepted by the Respondent) that the allegations of misconduct were serious and needed to be investigated. In essence the question for the court was to assess whether the way in which the employer had responded to reports received of possible misconduct by the Respondent was reasonable and proper, so that matters could be investigated. If that response was reasonable and proper it could not be said that the employer had breached the implied term of mutual trust and confidence.”
The Court of Appeal took into account that the context was one in which the employer had to safeguard the interests of very young children and it found that the County Court judge was entitled to reach the conclusion that the employer had reasonable and proper cause for the suspension. Consequently, the High Court was not entitled to interfere with that conclusion of fact and the appeal succeeded on this ground.
Was the approach of the High Court to the act of suspension wrong in law?
The Court of Appeal held that there is no test of “necessity” in relation to suspensions. The High Court judge had introduced a test of necessity in asking whether it was reasonable and/or necessary to suspend Ms Agoreyo. That had been wrong. The only test is whether there is reasonable and proper cause to suspend an employee. The County Court judge was entitled to conclude that the school had reasonable and proper cause to suspend Ms Agoreyo and accordingly there was no breach of the implied term of trust and confidence.
The appeal succeeded on this ground.
However, the Court of Appeal accepted that in some cases, the act of suspension will not be reasonable and may amount to a breach of contract. It would be necessary to consider the wider circumstances beyond the fact and manner of suspension, including events preceding the suspension and the extent to which the suspension was a “knee-jerk” reaction.
Is the act of suspension a neutral act?
The Court of Appeal stated that there is nothing in the ACAS Code of Practice on Disciplinary and Grievance procedures which says that suspension is a “neutral act”. What the ACAS Code says is that suspension should not be considered a disciplinary action and this should be made clear to the employee.
Interestingly, the Court of Appeal stated that:
“The question whether suspension is to be viewed as a neutral act is ultimately not a relevant question nor a particularly helpful one. The crucial question in a case of this type is whether there has been a breach of the implied term of trust and confidence. In the context of suspension that in turn requires consideration to be given to the question whether there was reasonable and proper cause for that suspension. This is a highly fact-specific question. It is not a question of law.”
The appeal was rejected on this ground.
When dealing with disciplinary matters it is always important to bear in mind the principles of fairness as set out in the ACAS Code of Practice on Disciplinary and Grievance procedures.
A key element of a fair procedure is carrying out any necessary investigations to establish the facts of the case. An employee will often be suspended while the investigation is carried out and the ACAS Code states:
“In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.”
The ACAS Code is supplemented by ACAS Guidance on Discipline and Grievances at work and this states that suspension should only be considered exceptionally if there is a serious allegation of misconduct and:
- There are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation.
- Working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or other business interests if the employee remains in the workplace.
- The employee is the subject of criminal proceedings which may affect whether they can do their job.
Often there is a contractual right to suspend and in making the decision about whether or not to suspend an employee, employers should take into account the provisions in the ACAS Code and Guidance referred to above.
The reasons why suspension is considered necessary should be fully documented and the decision kept under review throughout.
In addition, it is important to consider whether there any alternatives to suspension. There is separate ACAS Guidance on Suspension and this clearly states that alternatives should be considered and these could include the employee temporarily:
- Being moved to a different area of the workplace.
- Working from home.
- Changing their working hours.
- Being placed on restricted duties.
- Working under supervision.
- Being transferred to a different but comparable role within the organisation.
In relation to allegations of misconduct, the ACAS Guidance makes it clear that suspension should not be used as a disciplinary sanction and that it should not be an automatic approach for an employer when dealing with a disciplinary matter.
Helpfully, the ACAS Guidance contains general information about how an employee should be suspended, how long the suspension should last, communication during a suspension and information on ending a suspension. There is also some information for employees who believe that their suspension has been handled unfairly.
There are many issues for employers to consider when making the decision to suspend an employee. Where suspensions are not handled properly there may be claims for breach of contract for breach of the implied term of trust and confidence as in Agoreyo. However, there could also be a discrimination claim if the decision to suspend is tainted by, for example, racial bias.
The Court of Appeal decision in Agoreyo will be helpful to employers as it sets out clearly the key issue to consider – is there reasonable and proper cause to suspend?
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