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Case Law

Unjustified Suspension of Teacher was a Repudiatory Breach of Contract

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Agoreyo v London Borough of Lambeth [High Court] | 2017

This High Court case highlights (again) why employers must take great care when considering whether to suspend an employee who is accused of gross misconduct allegations. Get it wrong and an unjustified ‘knee jerk’ suspension will be a breach of the implied term relating to mutual trust and confidence.

Suspension

Suspension is regularly described in most employers’ disciplinary procedures or in their letters of suspension as a “neutral act”. In reality suspending an employee is anything but especially for a qualified professional. Suspension by definition removes the employee from their work and invariably creates a doubt or suspicion about the employee’s competence and integrity.

In this High Court case, Ms A was an experienced primary school teacher who was accused of having used unreasonable force against two children on three separate occasions. After she was suspended, Ms A immediately resigned and in due course brought a claim for damages based on her fixed-term contract of employment.

The High Court held that the timing and unjustified reasons for the suspension entitled Ms A to resign and treat herself as constructively and wrongfully dismissed. (Ms A’s short period of employment prevented her from bringing a claim of constructive and unfair dismissal).

Why was the suspension unjustified?

The High Court judge was damming of the local authority’s approach to the allegations; finding that it had adopted a default, knee jerk, response to the allegations. In particular the judge highlighted the following findings of fact that made the suspension unjustified and consequently a breach of the above implied term of trust and confidence:

  • Ms A, as the classroom teacher, was struggling to cope with two children who exhibited extremely challenging behaviour and had done so prior to her becoming their teacher;
  • Ms A had raised concerns about the two children and had asked for additional help and support which had been promised but not yet implemented, prior to the suspension;
  • Ms A had already highlighted her lack of training on how to deal with the two children (who both were said to be categorised as having “behavioural, emotional and social difficulties”);
  • At least two of the three incidents had already been investigated by Ms A’s line manager who had concluded that reasonable force had been used and that Ms A had no case to answer. Subsequently, however, a non-teaching staff member, raised concerns about Ms A’s actions in “strident terms” to the head teacher.
  • Most importantly, the judge was concerned to note that prior to the decision to suspend Ms A was made, the head teacher had not spoken to the line manager about her investigation and conclusions, or asked about the support put in place to help Ms A. The head teacher also did not ask Ms A for her response to the allegations nor did the head teacher give any consideration to any alternative to suspension, before the decision to suspend was taken.
  • The head teacher’s reason for suspending was to allow the allegations to be investigated but at no time did she seek to explain why Ms A had to be suspended for this purpose, or why a temporary change in duties or some other alternative to suspension was not adopted in order to save Ms A from the stigma of being suspended.

The judge concluded that the head teacher’s approach added “up to the conclusion that suspension was adopted as the default position and as largely a knee-jerk reaction to the strident terms” of the report made to the head teacher.

Another hearing will be required to decide the value of damages to be paid to Ms A.

In Practice

Employers must take great care in their decision making process when deciding if suspension is justified – in many cases it will not be safe to suspend, especially for professional employees such as teachers, social workers or doctors.

If you decide to suspend, be clear about the reasons you judge justify suspension and these must be spelt out in the letter of suspension. You must do more than just repeat the trite words that “suspension is a neutral act and implies no criticism of the employee” – you must be able to demonstrate you had a legitimate and objective reason for suspending and that no alternative option existed.

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