Wed 03 Apr 2019

Was the suspension of an employee a breach of contract?

In what circumstances will a suspension be a breach of an employee's contract of employment?

The case of London Borough of Lambeth v Agoreyo concerned the suspension of a school teacher following allegations that she had used unreasonable force against the children in her care on three occasions over a two month period at the end of 2012.  Despite the fact that two of the incidents had been looked into by the Head Teacher who had concluded reasonable force had been used, following the third incident Ms Agoreyo was informed she was suspended.  She resigned the same day. 

Ms Agoreyo then brought a claim arguing her suspension was a repudiatory breach of contract on the basis that the suspension was neither reasonable nor was it necessary for an investigation to take place.  The County Court rejected her claim finding the employer was bound to suspend Ms Agoreyo given the nature of the allegations.  However, when she appealed the High Court  decision appeared to be a warning shot across the bows of employers who jump too quickly to suspend employees accused of misconduct.  The Court criticised the procedure followed by Lambeth Council, no evidence having been led to suggest any attempt had been made by the Council to find out Ms Agoreyo's version of events before she was suspended.  The letter sent to her regarding the investigation also failed to explain why the investigation could not be carried out fairly without the suspension.  The Court, on considering whether "it was reasonable and/or necessary" for Ms Agoreyo to be suspended,  concluded the suspension constituted a breach of the implied term of trust and confidence. 

The  Court of Appeal judgement however, restores the findings of the County Court.  In addition to finding that the High Court judge had erroneously interfered with findings of fact made in the County Court - something which it was not entitled to do - the High Court also appeared to apply the wrong legal test.  The correct test, and the one that the County Court had applied, was whether the way in which the employer had responded to reports of possible misconduct by Ms Agoreyo "was reasonable and proper".  If the response was reasonable and proper then it could not be said that the employer had breached the implied term of trust and confidence.  The High Court Judge however had introduced an element of "necessity" into the test which was wrong. 

While finding that the suspension in this case was not a breach of contract, the Court did stress that each case must turn on its own facts saying "there can be no doubt that, in some cases, the act of suspension will not be reasonable and so may amount to a breach of contract".  Employers must still be wary of the "knee jerk reaction" and be sure there is reasonable and proper cause before suspending.

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