Have you considered alternatives to suspension?

Redundancy iStock 000006411338XSmall 146x219The High Court has held that by automatically suspending a teacher, a school had acted in breach of contract entitling the teacher to resign and make a claim for wrongful dismissal. Harmajinder Hayre examines the ruling.

In Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB), Ms Agoreyo taught Year 2 pupils at a South London primary school and had around 15 years' teaching experience. Her employment started at the school in November 2012.

In December 2012, Ms Agoreyo was suspended from her duties after an allegation was made that she had used physical force against two children who exhibited challenging behaviour in her class, including an allegation that she had restrained one child and carried another child out of the classroom. Prior to the decision being made to suspend her, Ms Agoreyo was not given the opportunity to respond to the allegations.

The same day Ms Agoreyo was informed by the head teacher of her suspension, she provided a handwritten letter of resignation, which although written in friendly language, did refer to a lot of 'unpleasant issues' related to her employment.

A letter of suspension was given to Ms Agoreyo which stated that the suspension was "a neutral action" and "not a disciplinary sanction". The letter went on to say the purpose of the suspension was to allow the investigation to be conducted fairly. Following the resignation, the matter was escalated, although neither the police or the Disclosure and Barring Service took any further action in relation to the incidents.

Ms Agoreyo issued a County Court claim for breach of contract alleging that her suspension was a repudiatory breach of the implied duty of trust and confidence. She did not argue that the allegations against her should not be investigated, but that suspension was not reasonable or necessary in order for the investigation to take place.

The County Court found that the council was bound to suspend Ms Agoreyo after the allegations had been reported against her on the grounds that it had an overriding duty to protect its pupils, and dismissed the claim. Ms Agoreyo appealed to the High Court.

Decision

The High Court allowed the appeal and held that the council had acted in breach of contract. It was held that the County Court had been wrong to hold that there was no alternative to suspension available to the school. The County Court found that the suspension was also incorrectly based on the school's duty of care to its pupils, which was contrary to the stated purpose of the suspension - to allow for a fair investigation.

The High Court was also critical of the school's failure to seek Ms Agoreyo's version of events, and the fact that the school was unable to explain how the investigation would have been less fair if the suspension had not been imposed. Furthermore, the seemingly friendly resignation letter did not preclude Ms Agoreyo from subsequently bringing a breach of contract claim.

Comment

Although the employee in this case was not eligible to make an unfair dismissal claim in the Employment Tribunal due to her length of service, this case should still serve as a reminder to employers, that when considering whether to suspend an employee for misconduct, it should never be used as a knee-jerk reaction and alternatives to suspension must be considered first (and fully documented). There is a significant amount of case law confirming that suspension is not a neutral act, and simply stating in a suspension letter that no criticism is being made of the employee is not a substitute for failing to consider less drastic measures. Even if a contract of employment or disciplinary policy provides a right to suspend an employee, this should not be used as the default position by the employer.

Harmajinder Hayre is executive partner in the Leeds office of Ward Hadaway. He can be contacted on 0113 205 6712 or This email address is being protected from spambots. You need JavaScript enabled to view it..