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Does suspension breach the implied term of trust and confidence?

22 March 2019

In London Borough of Lambeth v Agoreyo the Court of Appeal recently considered the circumstances in which an employee may be suspended without the employer breaching the implied term of mutual trust and confidence.

Ms Agoreyo was a primary school teacher who was suspended pending investigation five weeks into her employment at the school. Three incidents had taken place in which she had used force to remove two children with behavioural and special educational needs from the classroom. The first two involved Ms Agoreyo dragging a child along on the floor (on one occasion the child was heard to cry “help me” as she did so). On the third occasion, she had picked up a child and carried him out of the classroom kicking and screaming when he refused to leave himself.

She had contacted the Headteacher to tell her that she was struggling with controlling these two children after the first and second incidents. She had asked for some assistance and the headteacher agreed a plan to provide support and guidance. Some of the plan had been implemented before the third incident, which took place on 5 December, and some implemented subsequently. On 14 December Ms Agoreyo was informed that she was suspended pending investigation and she resigned later that day. She then brought a claim that by suspending her, Lambeth Borough Council had breached the implied term of trust and confidence.

Ms Agoreyo was unsuccessful in the County Court where it was held that Lambeth’s overriding duty was to protect the children and it had reasonable and proper cause to suspend her.

Ms Agoreyo appealed to the High Court, where it was held that the suspension was largely a “knee-jerk reaction” to the reports of excessive force having been used and that the suspension was sufficient to breach the implied term of trust and confidence.

Lambeth appealed to the Court of Appeal which held that the County Court judge’s assessment was correct and the High court should not have considered whether or not the suspension was necessary pending the investigation; the test was whether the school had reasonable and proper cause to suspend Ms Agoreyo. Having found that this was the case, there was no breach of the implied term of trust and confidence and therefore Ms Agoreyo’s claim failed.

Comment

Where an alleged incident or incidents are serious enough to raise safeguarding concerns about protecting children, particularly where the children are very young as in this case, it is likely to be reasonable to suspend an employee pending an investigation into the incident(s). However, in line with safeguarding best practice (see Keeping Children Safe in Education — September 2018) it should be always be considered whether other options are available as an alternative to suspension. Where it is decided that suspension is appropriate, it should be for as brief a period as possible, kept under review and it should be made clear that the suspension is not a disciplinary action.

By Esmat Faiz

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