It is well established law that suspending an employee who is facing disciplinary allegations could amount to a breach of the implied duty of mutual trust and confidence entitling the employee to resign and claim constructive dismissal. When is suspension right?
However, the Court of Appeal case of London Borough of Lambeth v Agoreyo, has confirmed that this is a highly fact-specific issue – it will depend on whether it was a reasonable response by the employer to the allegations of misconduct. If it was a reasonable response, then the Claimant’s claim will fail.
Suspension and the implied duty of trust and confidence
All employment contracts include an implied term of mutual trust and confidence between the employer and employee. A repudiatory breach of this term may entitle an employee to terminate the contract and bring a claim for constructive unfair dismissal or wrongful dismissal.
Suspension is not a neutral act and an employer must satisfy itself that it has reasonable and proper cause to suspend an employee to avoid breaching this implied term. In particular, suspension should not be an automatic or ‘knee-jerk’ response to enable an investigation to be carried out, particularly where an employee has been accused of serious misconduct.
The Claimant was employed as a primary school teacher. Her class included two children with behavioural difficulties. Within a few weeks of starting work, a number of allegations came to light that she had used force to remove children form the classroom. She was suspended pending an investigation into the allegations.
“The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”
On being told of her suspension, she immediately resigned.
The County Court claim
She claimed the suspension was neither reasonable nor necessary for the investigation to take place and first brought proceedings in the County Court arguing the suspension was a repudiatory breach of contract. Her claim failed on the basis that the employer had reasonable and proper cause to suspend, in light of its overriding duty to protect the children in its care.
The High Court appeal
The High Court overturned that decision on appeal, finding that suspension was a ‘knee-jerk’ reaction, especially because the head teacher had not initially thought that the incidents warranted disciplinary action. The Respondent did not have reasonable and proper grounds to suspend the Claimant, the Judge criticised the employer’s procedure, including the lack of consideration of alternatives to suspension.
The Court of Appeal
The employer’s appeal to the Court of Appeal was successful. The Court of Appeal noted that where an employer has reasonable and proper cause to suspend, it will not breach the implied duty of mutual trust and confidence. There is no element of necessity required for an employer to have reasonable and proper cause to suspend.
The court had to assess whether the employer’s response to the possible misconduct was reasonable and proper to allow matters to be investigated. If it was, it could not be a repudiatory breach of contract.