Suspension pending investigation not a repudiatory breach

In the recent decision of The Mayor & Burgesses of the London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322, the Court of Appeal has overturned the High Court’s decision on appeal, finding that a teacher’s suspension was not a repudiatory breach of the implied term of mutual trust and confidence.

Facts

The claimant was engaged by the respondent as a primary school teacher. Following certain allegations that the claimant had used unreasonable force on two children (including ‘dragging’ and carrying the children out of the classroom), she was suspended pending an investigation. In its letter of suspension, the respondent stated:

“The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”

The claimant had previously expressed her concern and had made requests of the respondent for assistance as two of the children were exhibiting challenging behaviour. On being informed of her suspension, the claimant immediately resigned.

Background – suspension and the implied duty of trust and confidence

All employment contracts include an implied term of mutual trust and confidence between the employer and employee. A repudiatory breach of this term may entitle an employee to terminate the contract and bring a claim for constructive unfair dismissal or wrongful dismissal.

Suspension is not a neutral act and an employer must satisfy itself that it has reasonable and proper cause to suspend an employee to avoid breaching this implied term. In particular, suspension should not be an automatic or ‘knee-jerk’ response to enable an investigation to be carried out, particularly where an employee has been accused of serious misconduct.

Decisions in the County Court and the High Court

The claimant brought proceedings against the respondent in the County Court arguing that her suspension had been neither reasonable nor necessary for the investigation into her conduct to take place and therefore amounted to a repudiatory breach of the implied duty of trust and confidence. In the first instance, the County Court rejected the claim, holding that that the respondent had been ‘bound’ to suspend the Claimant as a result of the allegations against her.

The High Court subsequently overturned this decision. In concluding that the respondent did not have reasonable and proper grounds to suspend the claimant, the Judge criticised the respondent’s procedure, including the lack of consideration of alternatives to suspension and the fact that the respondent’s suspension letter had not explained why it could not conduct a fair investigation without suspending the claimant.

Decision in the Court of Appeal

The Court of Appeal held that the High Court had erred in reversing findings of fact of the first County Court judge in relation to the reasonableness of suspension. The High Court failed to find a misdirection in law and instead simply substituted its judgment for that of the County Court.

The Court of Appeal noted that where an employer has reasonable and proper cause to suspend, it will not breach the implied duty of mutual trust and confidence. There is no element of necessity required for an employer to have reasonable and proper cause to suspend.

The Court of Appeal rejected the ground of the appeal which asked whether the act of suspension was a neutral act. The Court of Appeal found that as it was framed, this ground was not relevant nor particularly helpful. The question to be answered was whether there has been a breach of the implied term of trust and confidence and that depended on whether there had been reasonable and proper cause for the suspension which was highly fact specific not a question of law. The Court of Appeal went on to state that whether a suspension was described as a neutral act was unlikely to assist in resolving that question.