Allegations of misconduct should always be thoroughly investigated.
Nowhere is this more important than in the Education sector, where employers have a duty to protect the safety and welfare of the children under their care.
But what should schools do if a member of staff is accused of misconduct against children under their care? Is it appropriate – and indeed legal – to suspend the teacher in question while an investigation takes place?
A recent case has shed some light on the appropriate course of action in these circumstances.
Agoreyo v Mayor and Burgesses of the London Borough of Lambeth
The Claimant in this case, Ms Agoreyo, was a primary school teacher employed by the London Borough of Lambeth. She taught a class of about 29 children, aged between five and six years old.
Ms Agoreyo was accused of using unreasonable force on two children in her class who exhibited challenging behaviour. This included purportedly dragging a child across the floor and carrying a child out of the classroom kicking and screaming when they refused to leave. Following these accusations, Ms Agoreyo was verbally suspended pending an investigation into the alleged misconduct. Upon receiving this news, Ms Agoreyo resigned with immediate effect.
The school nonetheless sent Ms Agoreyo a letter to inform her of its decision to suspend, in which it emphasised that the suspension was a “neutral action… not a disciplinary sanction”. It maintained that the purpose of the suspension was purely to allow the investigation to be carried out fairly.
Ms Agoreyo claimed afterwards that she had previously expressed her concerns to the school and had requested support with managing the children’s challenging behaviour on numerous occasions. The school had begun to put supportive measures in place, but Ms Agoreyo was suspended before all intended measures were implemented.
A breach of trust and confidence?
Ms Agoreyo brought proceedings against the school for breach of contract, arguing that it was neither reasonable nor necessary for her to be suspended in order for an investigation to take place. This, she said, amounted to a breach of trust and confidence, an implied contractual term of all Contracts of Employment. This prevents the employer from conducting itself in a way that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee without reasonable and proper cause.
County Court decision
Initially, the County Court rejected Ms Agoreyo’s claim, finding that:
- The school had reasonable and proper cause to suspend Ms Agoreyo in light of the seriousness of the allegations made against her and its overriding duty to protect the children.
- The school had not breached the implied term of trust and confidence between the parties.
- The school had not failed to comply with the guidance issued by the Secretary of State in relation to the teaching of children with special educational needs.
- Ms Agoreyo had 15 years’ teaching experience while her predecessor had been able to manage the children with only one year’s post-qualification experience. She had also been given an induction, was supported at various stages by three teaching assistants, and had access to a SENCO assistant and an educational psychologist.
The claim was therefore dismissed.
High Court decision
This decision was later overturned by the High Court, deciding that the school acted in breach of the implied term of mutual trust and confidence when it suspended Ms Agoreyo.
The High Court held that the school was not “bound” to suspend Ms Agoreyo and stated that the County Court had not given express reasons as to why this would be the case.
The High Court also disagreed that the school had reasonable and proper cause to suspend Ms Agoreyo on grounds of its overriding duty to protect children, finding that the suspension was not “necessary”. After all, the employer had clearly stated in its suspension letter that its purpose was not to protect children but to ensure a fair investigation.
The school was also criticised for failing to:
- Give Ms Agoreyo the opportunity to respond to the allegations;
- Consider other alternatives to suspension; and
- Explain why it felt it could not conduct a fair investigation without suspending Ms Agoreyo.
The appeal
Consequently, the school appealed to the Court of Appeal.
The Court of Appeal overturned the High Court’s decision, finding that:
- The High Court had not been permitted to interfere with the findings originally made by the County Court when considering Ms Agoreyo’s appeal. Instead of finding a misdirection in law, the High Court had erroneously substituted the County Court’s judgment with their own.
- As an employer, the school had a duty to protect the children under its care, and that as such, the County Court was entitled to reach the conclusion that the employer had reasonable and proper cause for the suspension in this case.
- Where an employer has reasonable and proper cause to suspend, it will not breach the implied duty of mutual trust and confidence. Further, there is no requirement for a suspension to be ‘necessary’.
Suspension a neutral act?
The Court of Appeal was also expected to deal with the tricky question of whether suspension could be regarded as a “neutral act”. Unfortunately, it ducked that particular question, deciding that it was not particularly relevant or helpful for a court or tribunal to ask itself that.
Instead, the Court of Appeal focused on whether there had been a breach of the implied term of trust and confidence. Determining whether or not suspension could be described as a neutral act, the court stated, was unlikely to assist in answering this question.
Instead, whether a breach occurred depended on whether there had been reasonable and proper cause for the suspension. This, it said, was highly fact-specific, not a question of law.
So, can an employer suspend an employee without breaching the implied term of trust and confidence?
Yes, according to the Court of Appeal in this case, as long as it has “reasonable and proper cause” for doing so.
Jane Hallas
Head of Education Team
Expert Comment
While the Court of Appeal has, thankfully, overturned the High Court’s decision, it is still important to ensure that suspensions are not the default course of action. While the issue of whether suspension is a neutral act was sidestepped to a degree, it is still important to ensure that there is reasonable and proper cause to suspend. Safeguarding of children, as here, may well satisfy this, although care should be taken before making such a decision.
In any event, for schools, regard should always be had to first of all report any safeguarding concerns to LADO, before undertaking your own investigations. Suspension should only be undertaken after speaking to LADO and following the guidance in Keeping Children Safe in Education. The latter states that “all options to avoid suspension should be considered prior to taking that step” and that “suspension should not be the default position: an individual should only be suspended if there is no reasonable alternative.”
