Suspension is not a neutral act

Did suspension of a teacher amount to a breach of the implied term of mutual trust and confidence?

Yes. The High Court in the recent case of Agoreyo v London Borough of Lambeth has held that the suspension of a teacher amounted to a repudiatory breach of contract which entitled her to resign.

In this case, a teacher was suspended because of the force she used with two children. She had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension.

The suspension letter that followed stated that the suspension was a neutral act with the purpose of allowing investigations to be conducted fairly. It also stated that she would continue to receive normal pay.

She resigned on the same day as the suspension. She brought a claim for breach of contract (as she did not have the requisite 2 years’ service to bring a constructive unfair dismissal claim) on the basis that the suspension was a repudiatory breach of the implied term of trust and confidence.

The County Court held that London Borough of Lambeth was “bound” to suspend her after receiving the allegations against her as it had an overriding duty to protect children.

On an appeal to the High Court it was held that the County Court’s finding, that there was reasonable cause for the teacher to be suspended because of its overriding duty to protect children, could not stand because the actual reason given for her suspension was “to ensure a fair investigation”.

The Court concluded that suspension was adopted as the default position, was a knee-jerk reaction, and amounted to a repudiatory breach of contract. This was not undermined by a resignation in friendly terms.

Implications for the Employer

–          To suspend or not to suspend?

Suspension is a serious step and an employer should give careful consideration as to whether it can be avoided.

It is advisable for an employer to have an express right to suspend employees in contracts of employment.

Only in instances of serious misconduct should an employer consider suspending an employee who is being investigated.  It should never be a knee jerk reaction and prior to suspending, the employer must be satisfied it has reasonable grounds for the suspension in order to avoid breaching the implied term of mutual trust and confidence.

An employer should give careful consideration as to the reasons and purpose of the suspension and such reasons should be fully documented.  Furthermore the correct reason should be communicated to the employee at the time of suspension.

–          The suspension process

If an employer decides to suspend then any conversation to this effect should be followed up in writing to the employee setting out the correct reasons for the suspension, the length of time it is anticipated the employee will be suspended for and the employee’s rights and obligations during the period of suspension to include being paid normal pay and benefits for the duration of the suspension period.

–          Additional considerations

An employer should keep the period of suspension as short as possible and the suspension decision should be kept under regular review.  Careful thought should be given as to what colleagues, clients and other external third parties are told about an employee’s suspension and the investigation behind it.  An employer should also ensure that it operates its suspension policy consistently otherwise there may be a risk of breach of trust and confidence and/or discrimination.

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If you have further questions on this topic or wish to find out more about the services we can provide then please contact Reyhana Koser either by sending an email to reyhana@bradleyhayneslaw.co.uk or by telephone on 01905 900919

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 5 September 2017. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.