London Borough of Lambeth v Agoreyo

An employer’s suspension of an employee pending investigation can breach the implied term of mutual trust and confidence. The governing question is whether the employer acted, without reasonable and proper cause, in a manner likely seriously to damage that relationship. There is no separate test of necessity, and describing suspension as a neutral or non-neutral act is unlikely to resolve the issue. The assessment is highly fact-specific. The surrounding circumstances may include events preceding suspension and whether it was a knee-jerk response, but Gogay does not establish a general rule. On appeal, an evaluative finding of reasonableness is a question of fact. An appellate court must not substitute its own view unless the lower court misdirected itself in law or reached a conclusion no reasonable court could reach.

Ms Agoreyo, a primary-school teacher, sued the local authority for breach of contract after resigning on the day she was suspended pending investigation of three allegations that she had used excessive force on pupils. The County Court at Central London dismissed the claim. Foskett J allowed her appeal and held that the suspension breached the implied term of mutual trust and confidence, amounting to a repudiatory breach: [2017] EWHC 2019 (QB). The authority appealed to the Court of Appeal, challenging the High Court’s interference with the County Court’s findings and its approach to suspension, including the questions of necessity and whether suspension was a neutral act. The central issues were whether the High Court was entitled to reassess the County Court’s evaluative findings and whether the suspension had reasonable and proper cause.

1. Disposition. The appeal was allowed on the grounds that the High Court had impermissibly interfered with the County Court’s findings and that its approach to suspension involved legal error. The County Court’s judgment was restored.
2. Appellate review. Per Singh LJ, whether there was reasonable and proper cause for suspension was an evaluative question of fact. Under Civil Procedure Rules 1998 r.52.11(1), an appeal is a review rather than a rehearing. An appellate court must not simply decide the case again or substitute its own evaluation. Intervention requires a misdirection in law or a conclusion that no reasonable court could have reached. Appellate caution is especially important where the issue is one of fact and degree.
3. Suspension and trust and confidence. The implied term identified in Malik requires conduct likely to destroy or seriously damage the relationship of trust and confidence, without reasonable and proper cause. Suspension may breach that term, alone or with other conduct, but there is no separate test of necessity. The formula used by Foskett J, asking whether suspension was reasonable and/or necessary, was therefore erroneous.
4. Fact-specific assessment. The court may consider circumstances preceding the suspension and whether it was a knee-jerk response. Gogay was not a general principle requiring the same result in every case. The present case involved reports from two members of staff concerning three incidents and two pupils, in a context where the employer had to safeguard very young children. The County Court was entitled to find reasonable and proper cause for suspension.
5. The trial court was not required to investigate the alleged misconduct itself or determine every issue concerning witness reliability. Its task was to assess whether the employer’s response to reports of possible misconduct was reasonable and proper. Foskett J had therefore erred by substituting his own evaluation of the evidence.

Lord Justice Peter Jackson and Lord Justice Irwin agreed with Singh LJ.

1. Court of Appeal (Civil Division): The appeal was allowed and the County Court’s judgment was restored: [2019] EWCA Civ 322.
2. High Court (Queen’s Bench Division): Foskett J allowed Ms Agoreyo’s appeal from the County Court, reversed the dismissal and entered judgment in her favour: [2017] EWHC 2019 (QB).
3. County Court at Central London: HHJ Wulwik dismissed the claim at the liability stage. No citation is stated in the judgment.