Far from neutral

Although views might differ generally as to whether suspension of an employee is a neutral act, the High Court confirmed in Agoreyo v London Borough of Lambeth that, as far as the courts are concerned, it is not neutral. In the circumstances of this case, it amounted to a breach of the implied term of mutual trust and confidence.

Basic facts

Ms Agoreyo, a teacher with 15 years’ experience, started work on a fixed term contract teaching a class of five and six year olds. She was not told that two of the children (O and Z) had behavioural difficulties and had not been asked if she had experience teaching children on the autistic spectrum. 

Soon after she started work, she spoke to the head teacher about the “challenging behaviour” of O and Z and it was agreed that she needed more support. In December 2012, however, she was suspended on full pay by the executive head teacher following three incidents in which she allegedly used force against O and Z. The head teacher had previously investigated two of the incidents and concluded that the force used was reasonable. The letter said that suspension was a “neutral act” and had been initiated in order to allow an investigation into the incidents to be carried out. Ms Agoreyo was also told that, as part of the investigation, she would be interviewed in order to give her side of the story. 

She resigned on the same day that she was suspended and subsequently brought a claim for damages for breach of contract - the implied term of trust and confidence - in the county court. 

County court claim 

The judge dismissed her claim on the basis that other teachers with less experience than Ms Agoreyo had developed coping strategies for dealing with O and Z such as sending for another adult to encourage them to leave the room. Although the previous teacher had suggested this to Ms Agoreyo, she had not accepted her advice. He decided that, after receiving reports about the allegations, the school had had no alternative but to suspend her in order to protect the children in its care. 

In addition, the judge held that her friendly letter of resignation thanking the head teacher for her support undermined her claim for breach of contract, not least because her motive for writing it was “to jump before she was pushed”, thereby avoiding a full investigation of the allegations.

High Court decision

The High Court, however, disagreed. It was clear from the decision in Mezey v South West London and St George's Mental Health NHS Trust that suspension was not a neutral act, at least in relation to the employment of a qualified professional as it inevitably cast a shadow over their competence. That was not to say that employers could never suspend employees, but that it was not a neutral act. 

In addition, the statutory guidance for local authorities made clear that “all other options” should be considered before suspending a member of staff, meaning that suspension should not be “the default option”; and individuals should be suspended only if there was no reasonable alternative. 

In this case, however, suspension was adopted as the default position and largely as a knee-jerk reaction to the strident terms in which the allegations were presented to the school leadership team.  Nor was it to protect the children, as the county court judge had found - the letter of suspension said that it was to allow the investigation to be carried out fairly. Instead of simply suspending her, the school should have given Ms Agoreyo an opportunity to respond to the allegations before considering both suspension and the possible alternatives to suspension. 

In those circumstances, suspension was enough to breach the implied term of trust and confidence and was not negated by the letter of resignation.