UK: Teacher's Suspension Was Not In Breach Of Contract

Last Updated: 21 March 2019
Article by Alacoque Marvin

Court of Appeal: employer had reasonable and proper cause to suspend pending investigation of allegations of unreasonable force against children

Can suspension be a breach of contract?

Suspending an employee in some circumstances can be a breach of contract. Suspension can be in breach of the implied term of mutual trust and confidence when there is no reasonable or proper cause for suspending in the circumstances of the case.

What is the implied term of mutual trust and confidence?

Employers and employees must not, without reasonable and proper cause, act in a way which is likely to destroy or seriously damage the relationship of trust and confidence between them.

If an employer does act in this way, the employee is entitled to resign and can bring a claim based on constructive dismissal.

Case details: London Borough of Lambeth v Agoreyo

Ms Agoreyo worked as a year 2 teacher at a community primary school in Lambeth for a total of five weeks. Two of the children in her class showed challenging behaviour. Very early in Ms Agoreyo's employment, she communicated with other members of staff to ask for help in managing these children.

Over a two week period there were three incidents during which it was alleged by other staff, including a teaching assistant working with the class, that Ms Agoreyo had used unreasonable force to remove the children from the classroom. It was alleged, for example, that Ms Agoreyo had dragged a child "very aggressively" and picked a child up in a "heavy-handed" way.

During this period, Ms Agoreyo asked for help from the headteacher in encouraging other staff to provide support in dealing with these children. The headteacher assured her that support would be put in place. Following the last of the three incidents, the headteacher outlined the steps she proposed to take to support Ms Agoreyo.

Four days after this communication from the headteacher, and before some of the support plan had been put in place, the executive head suspended Ms Agoreyo pending investigation of the incidents. Ms Agoreyo resigned on the same day. She brought a claim for breach of contract in the County Court.

The County Court did not agree with the claimant. In the light of the seriousness of the allegations and the employer's overriding duty to protect the children in its care, the judge concluded that there was reasonable and proper cause for the suspension and so no breach of the implied term of mutual trust and confidence.

The claimant appealed to the High Court which overturned the judgment of the County Court. The High Court decided that there had been a breach of contract as there was no necessity to suspend the claimant in circumstances where the headteacher had inquired about two of the incidents and concluded that no more than reasonable force had been used.

On further appeal to the Court of Appeal, the decision of the County Court was reinstated. The Court of Appeal held that the High Court judge had applied the wrong test. The key question is whether the employer has reasonable and proper cause to suspend. There is no requirement for the suspension to be necessary. The Court of Appeal held that the County Court judge was entitled to find that there was reasonable and proper cause for the suspension in this case.

Is suspension a neutral act?

Many employers will use template suspension letters which include a statement that suspension is a "neutral act".  Employers should be aware that this is not the way a court or tribunal will view the matter. Case law makes clear that suspension can be an act which is likely to destroy or damage the relationship of trust and confidence between employer and employee. This may be particularly the case where the employee is working in a sector such as teaching, where professional reputation could feasibly be destroyed by speculation on the reasons for suspension.

The Court of Appeal in this case suggested that it is effectively irrelevant whether suspension is described as a neutral act or not. The relevant question is simply whether there is reasonable and proper cause to suspend. That question can only be answered by looking at the circumstances of the suspension.

Employers should note that the ACAS Code of Practice on Disciplinary and Grievance Procedures stipulates that employers should make clear that suspension is not a disciplinary sanction. It is important that suspension letters make this clear and state that suspension does not imply any assumption of guilt.

When will there be reasonable and proper cause to suspend?

The decision to suspend should not be "knee-jerk" or automatic. Because of the risk of breaching the employment contract, an employer should give careful thought to whether it is reasonable to suspend on a case by case basis. It is likely to be reasonable only where the employee's presence at work will pose a risk to the organisation, its staff or the people it works with; or where there is a risk that the employee will interfere with the investigation. It is important to carry out an initial investigation before suspension in order to be able to assess these risks.

Alternatives to suspension should be considered such as moving the employee temporarily to different work or increasing supervision. If the decision is made to suspend, it is advisable to make a written note of the reasons for this decision. Suspension should be for as short a period as possible and should be regularly reviewed. It could also be in breach of contract to keep someone on suspension after facts come to light suggesting there is no risk in them being at work.

The Court of Appeal made reference to the case of Gogay v Hertfordshire County Council [2000] EWCA Civ 288. In this case a residential care worker was suspended following allegations of sexual abuse from a "troubled" child in a children's home. It was held that suspension of Ms Gogay before further investigations were carried out and without considering alternatives to suspension was in breach of the implied term of trust and confidence.  In Agoreyo, the court pointed to the fact that the allegations against Ms Gogay were rather unclear, came from the alleged victim, and were not corroborated by others. By contrast, the allegations against Ms Agoreyo had been made by two members of staff and related to three separate incidents concerning two children. In this case, it was reasonable for the school to believe from initial investigations that there would be a risk to children if Ms Agoreyo was not suspended.

Employers should also be aware that the unreasonable use of suspension could found other claims. For example, it could be argued to be unfavourable treatment in a discrimination claim, particularly where other employees have not been suspended in similar circumstances. In an unfair dismissal claim, an employee could argue the suspension itself, or the way it was managed, made the dismissal procedurally unfair. In that case, the tribunal would consider whether the use of suspension was fair in the circumstances. Having a contemporary note of the employer's very good reasons for suspension will help employers to defend such claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions