In a case featuring London Borough of Lambeth, the Court of Appeal grappled with this question when Mrs Agoreyo, a primary school was suspended after two teaching assistants accused her of using excessive force against two young pupils with special educational needs. She claimed it was a 'kneejerk' suspension and thus a breach of the implied term of trust and confidence. She resigned and brought a claim for breach of contract in the County Court. The Court decided that the school had reasonable and proper cause for suspending her and dismissed her claim. On appeal, the High Court held that it had not been necessary to suspend her, and therefore the suspension was a breach of trust and confidence. She appealed to the Court of Appeal.
The Court of Appeal agreed with the County Court, and said that there was no breach of trust and confidence. The correct legal test was whether the Head Teacher had reasonable and proper cause to suspend, and the County Court judge was entitled to make the finding that it did - a decision which could not be overturned on appeal. The High Court was wrong to, seemingly, adopt a test of whether it was necessary to suspend - that was setting the bar too high.
Accordingly, the teacher's claim that her suspension was a breach of contract failed.
Had she brought a claim for constructive dismissal in the employment tribunal, what would have been the outcome? Remembering that constructive dismissal claims are form of unfair dismissal claims, where the employee resigns in response to a fundamental breach of contract by the employer, such as a breach of the obligation to maintain the relationship of trust and confidence. Well, the tribunal would have to consider:
- Whether the right to suspend an employee is included in the contract of employment for when a disciplinary issue is being investigated? If not it might be difficult to justify suspension; and
- Is there reasonable and proper cause to suspend? Such as where the employer needs to conduct an investigation into an allegation of misconduct and might be hampered in doing so if the employee at the centre of the allegations is present in the workplace and witnesses are at risk of being interfered with.
So the answer is that she would not have been successful in her ET claim. Because the local authority maintained school would have been able to justify its action as being based on reasonable and proper cause, given the nature of the allegations of misconduct against Mrs Agoreyo.
This case illustrates that the threshold for considering suspension of an employee suspected of misconduct is not that high, provided the right of suspension is contained in their contract of employment. It is no longer necessary to decide that it is necessary to suspend, just whether there is a reason to do so and that reason is reasonable.
If you have an allegation of misconduct made against one of your employees, you are contemplating investigating the matter and wondering whether to suspend the employee, then please do not hesitate to talk it through with us and seek our advice. Please contact a member of the team to discuss.