Andrew Rhodes considers the judgment of the Court of Appeal which provides authoritative guidance on disciplinary suspensions. Caspar Glyn QC and Chris Milsom acted for the successful Appellant employer.
Ms Agoreyo (“the Respondent”) was employed by the London Borough of Lambeth (“the Appellant”) as a primary school teacher. In her class were two pupils (O and Z) who exhibited behavioural difficulties and whom she struggled to teach. The Respondent had previously asked for support from other staff in managing these children.
In the first few weeks of her employment at the school, incidents occurred in which the Respondent was alleged to have used physical force against one or other of the children. These included dragging a child across the floor, dragging a child down a corridor while shouting at them and picking up a child when they refused to leave the class.
Following the three incidents, the Respondent was suspended by the Head Teacher pending an investigation. She resigned the same day.
The Respondent brought a claim in the County Court for breach of her employment contract, alleging that the Appellant had committed a repudiatory breach of the implied term of trust and confidence by suspending her.
To constitute such a breach, the conduct would need to, without reasonable cause, destroy or seriously damage the relationship of trust and confidence between the employer and employee.
First Instance Decision
At the County Court hearing, Judge Wulwik held that the Appellant had “reasonable and proper cause” to suspend the Respondent given the need to investigate the allegations against her, and the Appellant’s overriding duty to protect the children. There was therefore no repudiatory breach of contract and the claim was dismissed.
High Court Decision
The Respondent successfully appealed the decision. In his judgment, Mr Justice Foskett held that the suspension was a “knee-jerk reaction” to the “strident terms” in which the allegations were put, which was contrary to the decision in Gogay v Hertfordshire County Council  IRLR 703. The suspension was therefore a breach of the implied term of trust and confidence because it had not been “reasonable and/or necessary” for the Respondent to be suspended pending the investigation.
The judge also concluded that suspension was not a “neutral act”, relying on Mezey v South West London and St George’s Mental Health NHS Trust  EWCA Civ 10.
The appeal to the Court of Appeal was made on the following three grounds:
- That Foskett J’s findings on whether there had been a breach of the implied term was a substitution of his own judgment for the trial judge’s findings of fact.
- That it was wrong to treat the suspension as anything other than a “neutral act”.
- That applying the test of whether the suspension was “reasonable and/or necessary” was the wrong test, as it assumed the act of suspension was sufficient to breach the implied term, and the correct test was whether the Respondent had reasonable and proper cause to suspend the Claimant.
The Respondent’s case was that the High Court’s findings were permissible in light of Judge Wulwik’s errors of law, that suspension was not a neutral act (relying on Mezey), and that Foskett J’s application of Gogay was correct in law.
The Court of Appeal unanimously concluded that the appeal succeeded on Grounds 1 and 3 (Ground 2 was rejected as the court did not consider the question of whether suspension was a “neutral act” to be helpful for determining whether there had been a breach of the implied term).
Lord Justice Singh, giving judgment, stated that Foskett J had impermissibly substituted his own view of the facts for those of the trial judge. Whether an act constituted a repudiatory breach of the implied term was one of fact, as was whether the Appellant’s conduct had been reasonable. The trial judge had been entitled to find as he did on the basis of the evidence in front of him, and no error of law had been identified which would permit these findings to be overturned.
The court also held that, whilst suspension was conduct which could constitute a repudiatory breach of the implied term of trust and confidence, there is no test of “necessity” in determining whether an employer is entitled to suspend an employee. In Gogay the suspension had been without reasonable and proper cause, but that did not mean that any suspension would be a breach of the implied term unless the employer could show it was necessary.
It is relatively unusual for a claim for breach of the implied term of trust and confidence to be brought in the civil courts rather than the employment tribunal (where it would be a constructive dismissal claim). In this case, Ms Agorevo’s lack of qualifying service made her ineligible to bring a tribunal claim.
At first instance, the judge described this as a “blatant attempt” to circumvent the statutory provisions. The Appellant had, at an earlier stage, proposed to apply to strike out the claim on this basis, but this was not pursued.
In any event, the conclusion reached by the Court of Appeal is equally applicable to tribunal claims for constructive dismissal, and is helpful guidance for employers considering whether to suspend staff who are facing serious allegations.