Gogay v Hertfordshire County Council

A local authority may, and often must, investigate concerns that a child in its care may be at risk of significant harm under the Children Act 1989 or its common-law and statutory duties. The decision to investigate is distinct from the employment decision whether to suspend a staff member. Suspension is not automatic. It requires reasonable and proper cause, with alternatives considered where practicable. A reasonable-cause threshold is objective and assessed on the information available when the decision was made. A suspension letter which presents ambiguous material as an allegation of sexual abuse may breach the implied term of trust and confidence if it seriously damages the employment relationship. Recognised psychiatric illness and consequential financial loss may be recoverable for such a breach, unlike mere hurt feelings or mental distress.

Gogay, a residential care worker, was suspended by Hertfordshire County Council while it investigated statements made by EL, a vulnerable child living in a children’s home. The investigation found no case to answer. Gogay claimed damages for breach of the implied term of trust and confidence and for psychiatric illness and loss of earnings.

The Cambridgeshire County Court found breaches of contract and awarded £26,073.19. The local authority appealed on the propriety of the investigation and suspension, breach of contract and recoverability of psychiatric damages. Gogay cross-appealed for further loss of earnings after the stay of execution prevented her receiving treatment. The central issue was whether the authority had acted reasonably in suspending her.

Hale LJ gave the substantive judgment. May LJ and Peter Gibson LJ agreed.

1. Investigation. A local authority looking after a vulnerable child has common-law and statutory duties to safeguard the child. Those duties include making reasonable enquiries when information suggests a risk of harm from within the agency. Section 47 of the Children Act 1989 is principally directed to children living at home or removed in an emergency, but it is not the only source of authority for enquiries. The court did not need to decide whether the section 47 threshold had been crossed. Reasonable cause to suspect is an objective standard, assessed on the information available at the time, and suspicion is a lower threshold than belief.
2. Suspension. The child-protection investigation and the employment decision are separate processes. A staff member is not inevitably to be suspended merely because enquiries are being made. The authority must separately consider the interests of the child, the employee and the investigation, and whether transfer, leave or another measure would suffice. The child’s interests prevail in a conflict, but the response must still be structured and proportionate.
3. Implied term. The term of trust and confidence, stated in Malik v BCCI [1998] AC 20, is breached where conduct, objectively assessed, is likely seriously to damage the relationship and there is no reasonable and proper cause. Repudiatory intention is unnecessary. The information justified further enquiries, but it was too ambiguous to be described immediately as an allegation of sexual abuse. The authority had not made the necessary preliminary checks or considered alternatives before sending the accusatory suspension letter. It therefore breached the implied term.
4. Damages. The court distinguished hurt feelings and mental distress from recognised psychiatric illness. Following Malik and applying the reasoning in Page v Smith [1996] AC 155 and Walker v Northumberland County Council [1995] IRLR 35, damages for the psychiatric illness and resulting financial loss were recoverable. Addis v Gramophone Co Ltd [1909] AC 488 did not preclude that conclusion, and Johnson v Unisys [1999] IRLR 274 was distinguishable because it concerned dismissal. The finding that the losses were foreseeable was one of fact.
5. Cross-appeal. The trial judge’s prediction about recovery and return to work had been proved wrong. Since the authority was not prejudiced or taken by surprise, permission to cross-appeal out of time was granted and damages were increased by £13,424.36. The appeal was dismissed and the cross-appeal allowed with costs.

• Cambridgeshire County Court. His Honour Judge O’Brien found breaches of the implied contractual terms and awarded £26,073.19, following hearings on 20 March and 9 July 1999.
• Court of Appeal (Civil Division). The local authority’s appeal was dismissed. Gogay’s cross-appeal was allowed, and the damages award was increased by £13,424.36.