Agoreyo v London Borough of Lambeth
Ms Agoreyo was employed as a teacher at Glenbrook Primary School, a community school in South London. Ms Agoreyo had 15 years’ teaching experience and had previously worked with children with special educational needs, but had no training in how to deal with children with behavioural difficulties.
Some 5 weeks after starting work, Ms Agoreyo was told by the head teacher that she was to be suspended because a report had been received that she had “manhandled a child in [her] class”. The allegations related to three incidents involving two particular children who had severe behavioural, emotional and social difficulties. The children’s behaviour, amongst other things, would include physically harming fellow students and staff. The difficulty to control the children was acknowledged by fellow members of staff and Ms Agoreyo made several complaints to her line manager that she was not being supported enough when it came to controlling these particular children. In response to being told this, she asked if she could submit a letter of resignation and the head teacher agreed. She duly resigned by letter.
Ms Agoreyo’s line manager was aware of the incidents that took place and did not conclude that more than reasonable force had been used. In fact, a week prior to Ms Agoreyo’s suspension, Ms Agoreyo’s line manager contacted her to assure her that more support would be put in place to ensure that these children did not disrupt the learning of others and to make sure their behaviour could be better controlled.
Ms Agoreyo said that it was not until the head teacher responded to her resignation letter some time later that she became aware of the allegations against her. The London Borough of Lambeth argued that Ms Agoreyo was provided with a letter of suspension, which confirmed (amongst other things) that there was to be a full investigation, and which set out the allegations against her. Ms Agoreyo denied ever receiving that letter. For this reason she had queried what exactly the allegations were against her. Ms Agoreyo maintained throughout that not only was she entitled to use force in the particular circumstances, but also that no more than reasonable force was used.
Ms Agoreyo claimed damages for breach of contract.
The High Court allowed Ms Agoreyo’s appeal. It concluded that the employer had been in repudiatory breach of contract, and that Ms Agoreyo’s resignation amounted to a constructive dismissal.
The Judge commented that it is well established that suspension is not considered a routine response to the need for investigation. It was also reiterated that particularly in relation to “a qualified professional” such as a teacher, suspension cannot be considered a neutral act as it automatically brings into question the employee’s competence.
It found that the suspension itself did breach the implied term of trust and confidence, particularly when Ms Agoreyo’s line manager had already investigated at least two of the incidents and not considered them worthy of disciplinary action. It was highlighted that Ms Agoreyo’s resignation did not change this outcome as the argument that her decision to resign was to avoid a full investigation could not be justified.
The Judge noted in particular that prior to the decision to suspend, the decision maker did not speak to Ms Agoreyo’s line manager as to her knowledge of the events; Ms Agoreyo was not asked for her response to the allegations; and no consideration was given to any alternative to suspension. The Judge found that the suspension was a “knee jerk reaction” and adopted by default. That in itself was, the Judge said, enough to be a breach of the implied term of mutual trust and confidence. However this was compounded by the timing of the suspension, being within a few days of finally being told (after several weeks of requests for help) of the introduction of a scheme of support and further induction because of the problems she faced in dealing with those particular children, particularly when that scheme was never even implemented.
The issue of damages was transferred to a High Court Judge to be dealt with.
Suspension is a serious step and employers should think about whether it can be avoided before making the decision to suspend. If an employee is suspended without reasonable grounds for doing so, then the implied term of mutual trust and confidence is likely to be breached, giving rise to claims for unfair constrictive dismissal. So called knee-jerk suspensions should therefore be avoided.
Employers should give consideration to whether the employee could stay at work during the investigation, e.g. by carrying out different duties or working from a different location.
Employers should also make sure that their contracts of employment set out the contractual right to suspend.
If you have any queries relating to breach of contract claims or any other HR queries, please do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.