Suspension pending an investigation into misconduct is lawful

06 Mar 2019

In a move which will be welcomed by employers up and down the country, the Court of Appeal has overturned a decision by a High Court Judge that suspension was a repudiatory breach of contract entitling the employee to resign and claim that she had been constructively dismissed. 

In Mayor and Burgesses of the London Borough of Lambeth v Agoreyo, the Court of Appeal has held that a County Court Judge was entitled to find that a school had reasonable and proper cause to suspend a teacher in order to investigate allegations that she had used unreasonable force against two children, and thus to conclude that there was no breach of the implied term of trust and confidence.

'A' was an experienced primary school teacher and taught a class which included two children with extremely challenging behaviour. Allegations were made against A that she had used unreasonable force towards one of these two children on three occasions. Following the third incident, A was suspended and resigned almost immediately. She subsequently brought a County Court claim for breach of contract against the Local Authority (LA), asserting that her suspension was a repudiatory breach of the implied duty of trust and confidence. 

The County Court rejected A’s claim, holding that the LA “clearly had reasonable and proper cause to suspend the claimant”. It had an overriding duty to protect the children pending a full investigation of the allegations. That, in the County Court’s view, could only be achieved by suspending A until the allegations were fully investigated. 

The High Court allowed A’s appeal deciding that A’s suspension breached the implied term of trust and confidence, being a ‘knee-jerk reaction’. It also suggested that suspension could not be a neutral act.

The Court of Appeal allowed the appeal by the Local Authority, who argued that the High Court was wrong to regard the act of suspension as anything other than a ‘neutral’ act. The Court of Appeal observed that the ACAS Code of Practice on Disciplinary and Grievance Procedures provides no guidance as to whether suspension is a ‘neutral act’, merely stating that suspension should not be considered a disciplinary action. In any event, the Court of Appeal doubted its relevance, stating that whether or not suspension is described as a ‘neutral act’, is unlikely to assist in resolving the crucial issue of whether there was reasonable and proper cause for that suspension in the context of the implied term of trust and confidence.

What does this mean for employers?

The decision by the High Court cast doubt on whether employers could continue to suspend employees pending an investigation. Employers will therefore welcome the decision by the Court of Appeal which confirmed that employers must be able to suspend employees in certain circumstances without the prospect of legal action by the employee claiming that their contract of employment has been breached. That said, employees do have to consider the circumstances very carefully before suspending and satisfy themselves that suspension is necessary and justified. Where suspension can be avoided or there are not good and proper grounds to suspend, employees continue to face to the prospects of breach of contract claims.

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