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TIn the case of London Borough of Lambeth v Simone Agoreyo
[2019] EWCA Civ 322, the Court of Appeal held that the High Court had been wrong to overturn the decision of the County Court who had dismissed a teacher’s claim for damages for breach of contract, holding that her employer had been entitled to suspend her after allegations of misconduct towards two students came to light.

The factual background of London Borough of Lambeth v Simone Agoreyo

Ms Agoreyo (the ‘Claimant’) was employed by the London Borough of Lambeth (the ‘Respondent’) as a primary school teacher. In her class were two pupils (O and Z) who exhibited behavioural difficulties and whom she struggled to teach.

In the first few weeks of her employment at the school, 3 incidents occurred in which the Claimant was alleged to have used physical force against one or other of the children. These included dragging a child across the floor, dragging a child down a corridor while shouting at them and picking up a child when they refused to leave the class.

Following the three incidents, the Respondent was suspended by the Head Teacher pending an investigation. The suspension letter stated that suspension was a precautionary act pending a full investigation into the allegations.  It also stated that the suspension was a ‘neutral action and not a disciplinary action’.  However, before the decision to suspend was taken, the Claimant wasn’t asked for her comments on the allegations, nor did the school provide any evidence to suggest that it had considered other alternatives to suspension.

The Claimant resigned the same day and went on to make a claim for breach of contract in the County Court, alleging that the Respondent had committed a repudiatory breach of the implied term of trust and confidence by suspending her.

The decision of the County Court

The Claimant lost in the County Court when it held that the school had ‘reasonable and proper cause’’ to suspend her after receiving reports of the allegations against her and that suspension was necessary because of the school’s overriding duty to protect the children pending a full investigation. There was therefore no repudiatory breach of contract and the claim was dismissed.

The Claimant appealed to the High Court.

The decision of the High Court

The Claimant successfully appealed the decision. The High Court held that the suspension was a “knee-jerk reaction” which was contrary to the decision in Gogay v Hertfordshire County Council [2000] IRLR 703. The suspension was therefore a repudiatory breach of the implied term of trust and confidence because it had not been “reasonable and/or necessary” for the Claimant to be suspended pending the investigation.

It also concluded that suspension was not a “neutral act”, relying on Mezey v South West London and St George’s Mental Health NHS Trust [2007] EWCA Civ 10.

The decision of the Court of Appeal

The Claimant appealed against the decision of the High Court on the following three grounds:

  1. That the findings of the High Court Judge on whether there had been a breach of the implied term was a substitution of his own judgment for the trial judge’s findings of fact.
  2. That it was wrong to treat the suspension as anything other than a “neutral act”.
  3. That applying a test of whether the suspension was “reasonable and/or necessary” was wrong in law and the correct test was whether the Respondent had reasonable and proper cause to suspend the Claimant.

The Claimant’s case was that the High Court’s findings were permissible in light of the County Court’s errors of law, that suspension was not a neutral act (relying on Mezey), and that their application of Gogay was correct in law.

The Court of Appeal concluded that the appeal succeeded on Grounds 1 and 3.  Ground 2 was rejected as the court did not consider the question of whether suspension was a “neutral act” to be helpful for determining whether there had been a breach of the implied term.

The Court of Appeal held that High court judge had substituted his own view of the facts for those of the trial judge. Whether an act constituted a repudiatory breach of the implied term was one of fact, as was whether the Respondent’s conduct had been reasonable. The trial judge had been entitled to find as he did on the basis of the evidence in front of him, and no error of law had been identified which would permit these findings to be overturned.

The Court of Appeal also held that, whilst suspension was conduct which could constitute a repudiatory breach of the implied term of trust and confidence, there is no test of “necessity” in determining whether an employer is entitled to suspend an employee. In Gogay the suspension had been without reasonable and proper cause, but that did not mean that any suspension would be a breach of the implied term unless the employer could show it was necessary.  This was a highly fact-sensitive question and not a question of law.

Our solicitors’ views on the case of London Borough of Lambeth v Simone Agoreyo

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case confirms that the decision to suspend an employee should never be taken lightly as it is not a neutral act, at least in relation to the employment of a qualified professional.  Whenever an employer is considering suspending an employee, they should make sure there is ‘reasonable and proper cause’ to justify the suspension.”

The decision of the Court of Appeal in London Borough of Lambeth v Simone Agoreyo [2019] EWCA Civ 322can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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