Court of Appeal overturns Agoreyo decision on suspending employee

May 31, 2019

Background

The 2017 decision of the High Court in London Borough of Lambeth v Agoreyo that a teacher was unfairly suspended (and so the implied term of mutual trust and confidence in her contract of employment breached) attracted some attention at the time. Many commentators noted the headline that suspension is “not a neutral act”. The Court of Appeal has recently overturned the High Court decision and restored the original County Court judgment.

Facts of Case

In 2012 Ms Agoreyo worked as a primary school teacher for the London Borough of Lambeth (LBL). It was alleged that on three occasions she used unreasonable force against young children who had exhibited challenging behaviour. Ms Agoreyo was suspended in a letter which stated that “the suspension is a neutral act and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly”. Ms Agoreyo resigned the same day on which she was informed of her suspension and brought a County Court claim challenging its lawfulness.

Lower Court Decisions

The County Court held that Lambeth had not breached the implied term of trust and confidence noting the seriousness of the allegations and the overriding duty to the welfare of the children. However, the High Court reversed this and found that the suspension had been “largely a knee-jerk reaction”. Foskett J stated that “the central issue is whether it was reasonable and/or necessary for the [Respondent] to be suspended pending that investigation…” and found that in the circumstances it was not. It is notable that there was a lack of witness testimony available for Lambeth at both levels.

Court of Appeal Decision

The Court of Appeal allowed Lambeth’s appeal on two grounds. Firstly, it was held that the High Court was not entitled to interfere with the findings of fact which had been made by the County Court (namely that Lambeth had reasonable and proper cause for suspension). Secondly it was held that the High Court had erred in law. The relevant test from the case of Malik v BCCI is whether or not the employer’s conduct destroys or seriously damages the relationship of trust and confidence and that this is without reasonable and proper cause. There is no test of “necessity” for suspensions. The third ground of appeal that suspension is a neutral act was not upheld. The Court of Appeal declined to accept this and said that this question is not particularly relevant to this case anyway.

Comment

This case shows that whether or not a suspension would breach the relationship of trust and confidence is a highly-fact specific question rather than a question of law. Describing a suspension as a “neutral act” is not likely to assist employers. Suspending an employee is, by its nature, unlikely to be a neutral act. As was noted in the case of Mezey V South West London and St George’s Mental Health NHS Trust, “suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee’s competence”.

Therefore, the key question is not whether suspension is a neutral act or even a necessary one but rather whether or not there is reasonable and proper cause for it. It naturally follows that suspension should never be a knee-jerk reaction but rather carried out for legitimate reasons in the circumstances of the case. These reasons should also be evidenced in writing so that the thought process of the decision maker is clear if the decision is challenged at a later date. This case shows that this is particularly valuable if the decision maker is no longer available to provide testimony.

This decision will be a relief for employers due to the fact that the decision of the High Court would have arguably set the bar too high. However, this decision should not be seen as giving permission to suspend in all cases. The factual background will always be the key aspect for employers when taking the decision to suspend an employee. Employers should also review periods of suspension and ensure they lift the suspension at the appropriate time. It is often advisable to seek legal advice before suspending employees to minimise the risk of claims.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Law Team at Cleaver Fulton Rankin for further advice or information.

Nathan Campbell, Senior Solicitor, Employment Law Team, Cleaver Fulton Rankin, Solicitors.