Opinion

Court of Appeal decision gives guidance on when to suspend

26th March 2019

Court of Appeal decision gives guidance on when to suspend

A recent Court of Appeal decision has highlighted the factors to be considered when assessing whether the decision to suspend an employee will amount to a breach of the implied term of mutual trust and confidence. What are the implications for your business?

In the case of London Borough of Lambeth v Agoreyo, Agoreyo was a teacher at a primary school and had two pupils in her class with “behavioural, emotional and social difficulties”. As Agoreyo had no experience or training dealing with children with behavioural difficulties the school assured Agoreyo that she would receive additional support for these children. However before this support was put in place, it was alleged that Agoreyo used force to control pupils’ behaviour in three separate incidents.

Due to the allegations, Agoreyo was suspended with immediate effect. Agoreyo resigned on the same day and claimed there had been a repudiatory breach of contract by her employer. Agoreyo claimed that the implied term of mutual trust and confidence, which is implied into every contract of employment, had been breached.

Following conflicting decisions from the County Court and High Court, the Court of Appeal had to determine whether the decision to suspend Agoreyo had amounted to a repudiatory breach.

The Court of Appeal stated that in the context of suspension, the question of whether there had been a breach of the implied term of mutual trust and confidence required consideration of whether there was a reasonable and proper cause for that suspension. It was not required to demonstrate that the suspension was necessary, only reasonable and proper.

Lord Justice Singh stated that this is a “highly fact-specific question” and not a question of law. In order to answer this question, the court may consider the “wider circumstances beyond the fact and manner of suspension” which would include the events preceding the suspension and whether the suspension was a “knee-jerk” reaction.

In considering the facts, the Court of Appeal suggested it is necessary for employers to consider whether there is an alternative to suspension such as moving the employee away from the alleged victim/issue. Further, it was emphasised that suspension should not be used as a disciplinary action as reflected in the ACAS Code of Practice on Disciplinary and Grievance Procedures.

As there were a number of allegations from a number of sources about Agoreyo’s behaviour, the Court of Appeal decided that the decision to suspend Agoreyo was not a breach of the implied term of mutual trust and confidence. The Court felt there had not been a “knee-jerk” reaction and the employer had considered the severity of the allegations and the length of investigation required before concluding that a suspension was reasonable and proper in these circumstances.

Considerations for Employers

When considering whether to suspend an employee, it would be best practice for employers to consider: 

  • Are there any alternatives to suspension such as a temporary change in role?
  • Is there a reason to suppose that the employee has committed the alleged act, taking into account the credibility and volume of witnesses
  • How serious is the allegation?
  • How long will the investigation take?
  • Refer to, and comply with, any relevant company policies
  • Consider the ACAS Code of Practice on Disciplinary and Grievance Procedures

 

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