Welcome to the December edition of our employment law bulletin.

This year has seen a number of significant decisions in the EAT, Court of Appeal, Supreme Court and European Court of Human Rights which are likely to impact on employers. In this edition we take a look back at some of the most important cases of 2019.

The Court of Appeal decision in London Borough of Lambeth v Agoreyo provides guidance on when suspension might be in breach of contract and is a reminder that a decision to suspend should never be automatic or knee-jerk.

In North West Anglia NHS Foundation Trust v Gregg, the Court of Appeal made clear that there will be circumstances when an employer can continue an internal disciplinary investigation while police and regulatory investigations into the employee's conduct are on-going.

In The Governing Body of Tywyn Primary School v Aplin, the EAT's judgment that a disciplinary investigation report was discriminatory on the ground of sexual orientation provides useful commentary on the importance of neutrality in investigations.

The Court of Appeal decision in Kostal UK Ltd v Dunkley and others suggests that claims concerning direct offers from employers to trade union members in order to bypass collective bargaining arrangements may be less likely to succeed in future. However, Unite is seeking permission to appeal to the Supreme Court.

Another important Court of Appeal judgment, this time on the subject of holiday pay, is that of Harpur Trust v Brazel. This case highlights the importance of ensuring that workers with variable hours who have some unpaid non-working weeks during the year are paid holiday pay based on average weekly pay over the 12-week (soon to be 52-week) reference period, rather than assuming they should receive an additional 12.07% of pay.

In Community Based Care Health Ltd v Narayan, the EAT held that a locum GP was a worker even though she was labelled a self-employed contractor and paid through her own company.

The recent decision of the Supreme Court in Gilham v Ministry of Justice potentially opens the door to whistleblowing claims from office holders who are not employees or workers. We also look at recent and upcoming changes which are likely to extend whistleblowing protections.

The European Court of Human Rights has clarified the limited circumstances in which employers will be justified in using covert surveillance of staff in López Ribalda and Others v Spain.

Teacher's suspension was not in breach of contract

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.

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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.