Agoreyo v London Borough of Lambeth

Suspension pending investigation is not a neutral act and must not be treated as the default response. Before suspending an employee, an employer should consider the circumstances objectively, including the employee’s account, the available evidence, the need for suspension and reasonable alternatives. A suspension imposed without reasonable and proper cause may breach the implied term of mutual trust and confidence. The court should assess whether the employer’s conduct was likely to destroy or seriously damage that relationship. A constructive dismissal may arise from the suspension itself, or from the suspension together with related failures to support the employee, where the conduct amounts to a repudiatory breach.

The claimant, a teacher employed by the defendant under a fixed-term contract, was suspended after three incidents involving the use of force on challenging pupils. She resigned on the same day and claimed damages for breach of the implied term of mutual trust and confidence and constructive dismissal.

The Central London County Court dismissed the claim after a trial confined to liability. The claimant appealed, contending that the defendant had failed to provide adequate support and had suspended her without reasonable and proper cause, without considering her account or alternatives to suspension. The central issues were whether the suspension breached the implied contractual term and whether the resignation amounted to constructive dismissal.

1. Appeal allowed. The order of the Central London County Court was set aside and a finding of repudiatory breach of contract and constructive dismissal was substituted. Issues of causation and damages had not been determined.
2. The implied term of mutual trust and confidence required the defendant not, without reasonable and proper cause, to conduct itself in a manner likely seriously to damage or destroy the employment relationship. Suspension is not a neutral act. As explained in Mezey v South West London and St George's Mental Health NHS Trust [2007] EWCA Civ 106, it changes the employee’s status from work to no work and casts a shadow over professional competence.
3. Suspension should not be a routine or default response to allegations. The reasoning in Gogay v Hertfordshire County Council [2000] IRLR 703 required avoidance of a knee-jerk reaction and consideration of whether further investigation or an alternative arrangement could address the immediate concern.
4. Objectively assessed, the evidence showed that the pupils presented an extremely challenging combination, that the claimant had repeatedly sought assistance, and that the planned support had not been fully implemented. There was no evidence that the decision-maker had obtained the claimant’s account, consulted the relevant line manager, assessed the support already provided, or considered an alternative to suspension. Suspension was therefore adopted as the default position.
5. That conduct was sufficient to breach the implied term, particularly because the line manager had investigated at least two incidents and considered that reasonable force had been used. In any event, the suspension shortly after a support and induction package had finally been proposed, but before it was fully implemented, provided an additional basis for breach. The resignation letter did not negate the breach. The claim was to be progressed on damages.

1. High Court (Queen's Bench Division): appeal allowed; the order below was set aside and judgment substituted for the claimant on liability.
2. Central London County Court: His Honour Judge Wulwik dismissed the claimant’s claim for damages for breach of contract on 12 January 2017.