Suspension of teacher accused of using unreasonable force not a repudiatory breach

In Mayor and Burgesses of the London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322 CA the Court of Appeal held that a school had reasonable and proper cause to suspend a teacher in order to investigate allegations that she had used unreasonable force against two children, and thus concluded that there was no breach of the implied term of trust and confidence. The High Court’s decision to overturn that judgement was an error of law, as it had mistakenly interfered with the trial judge’s finding of fact rather than identifying any misdirection of law.

A, an experienced primary school teacher, taught a class of 29 five and six year olds, including two children who exhibited extremely challenging behaviour. It was alleged that A had used unreasonable force on one of these children on three separate occasions. The first two occasions were investigated by the head teacher shortly after and it was found reasonable force was used. However, after the third instance A was suspended and resigned, subsequently bringing a claim for breach of contract, namely a repudiatory breach of the duty of trust and confidence.

The county court rejected the claim, holding that there was an overriding duty to protect the children pending a full investigation and so there was reasonable and proper cause for the suspension to allow a full investigation to be conducted.

A appealed and the High Court allowed the appeal, substituting a judgement that A’s suspension did breach the implied term of trust and confidence as it was a “knee-jerk reaction” to the circumstances. The High Court considered that the central issue was whether it was “reasonable and/or necessary for A to be suspended pending investigation”. The Borough appealed.

The Court of Appeal allowed the appeal and restored the county court judgement that it was reasonable to suspend the teacher in the circumstances. The High Court erred by substituting its view for that of the County Court. The court noted that the implied term of mutual trust and confidence means that an employer must not "without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee". The High Court had therefore erred by asking ‘whether it was reasonable and/or necessary’ for the teacher to be suspended, as there is no test of necessity, only whether there was reasonable and proper cause to suspend the employee.

The Borough had also argued that the High Court was wrong to regard the act of suspension as anything other than a ‘neutral’ act. The court noted that the Acas Code of Practice did not suggest that suspension was a neutral act but instead suggested that suspension should not be considered a disciplinary action and this should be made clear to the employee. In any event, the court considered that the question whether suspension was to be viewed as a neutral act was "ultimately neither a relevant question nor a particularly helpful one".

A term of mutual trust and confidence is implied into all employment contracts. In deciding whether suspending an employee pending a disciplinary investigation amounts to a repudiatory breach of this implied term of the contract, the key consideration is a question of fact as to whether or not there was a “reasonable and proper” cause for the suspension.

Employers should be conscious of the fact that, even where it is stressed that suspension is not a disciplinary action it may not feel like that to the employee being suspended. Suspension cannot therefore be a routine response to the need for an investigation, particularly when very serious allegations of wrongdoing, and the reasons for suspension should be made clear to the workforce. There is statutory guidance in relation to teachers which requires all other options to be considered before suspension.