18 March, 2019
The Court of Appeal in The Mayor & Burgesses of the London Borough of Lambeth v. Agoreyo this week confirmed a decision of the County Court that a school had reasonable and proper cause for suspending a teacher in order to investigate allegations that she had used unreasonable force against two children, and that there had been no breach of the implied term of trust and confidence.
The Court of Appeal addressed an erroneous decision of the High Court, finding that it had conducted an impermissible interference with the County Court's assessment of the facts of the case. It also found that the High Court had erred by asking whether it was reasonable and/or necessary for the teacher to be suspended as the issue of necessity is not part of the required test.
The Respondent, Ms Agoreyo, a teacher with 15 years' experience, was recruited as a Year 2 teacher at a Primary School in South London. There were a number of children in her class with known behavioural issues and over the course of her early weeks teaching at the school the Respondent requested additional support to assist with these children, but none was forthcoming. She had previously worked with children with special educational needs but had no specific training as to how to deal with these specific behavioural difficulties.
Three incidents subsequently took place involving two of these children. In the first incident, a pupil was dragged along the floor out of the classroom by the Respondent. In the second incident, the Respondent dragged a pupil very aggressively down a corridor whilst shouting at him. The final incident occurred when one of the pupils was asked to leave the classroom after being unable to follow instructions. He refused and the Respondent picked up the child, who kicked and screamed in the presence of the rest of the class.
Following these incidents, the Respondent was suspended pending an investigation. The Respondent then went on to resign that same day, and commenced proceedings for breach of contract against the Appellant. She claimed that she had been entitled to resign further to a breach of trust and confidence by the Appellant.
The central issue was not whether the incidents should be investigated, but whether the Respondent should have been suspended during the investigations. If not, did the suspension amount to a breach of the implied term of mutual trust and confidence? The implied term requires the employer not to conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee without reasonable and proper cause. Breaches of such terms constitute repudiatory breaches of contract which employees are entitled to accept by resigning.
The Respondent claimed she was not informed that she would be teaching two pupils with behavioural issues, or asked if she had particular experience in this regard. The challenging nature of the two specific pupils was recognised by the school and at one stage the Head Teacher had considered separating them. Examples of the challenging behaviour displayed by the pupils were swearing, throwing objects, spitting, screaming at other children, hitting and grabbing, and failing to take turns with other children. However, the previous class teacher had managed to control the class with only one-year post-qualification experience, as did the Respondent's successor, a newly qualified teacher.
County Court decision
At first instance, the judge found that the Appellant had not breached the implied term of trust and confidence between the parties.
In particular, the judge found that the Appellant had not failed to comply with the guidance issued by the Secretary of State in relation to the education of children with special educational needs. This was founded on the basis that the Respondent was an experienced teacher with 15 years of experience, including previous work with children with special educational needs, and that the previous teacher had been able to deal with the children with only one year of post-qualification experience. The Respondent had been given an induction, was supported at various stages by three teaching assistants, and had access to a SENCO assistant and an educational psychologist. In the absence of any failures, the respondent was unable to show that there had been a breach of the implied term of trust and confidence. The allegations of inappropriate force were serious allegations which required investigation and the Appellant was entitled and bound to suspend the Respondent after receiving reports of the allegations from colleagues.
High Court decision
The Respondent then appealed and was successful, the judge finding that her employer had in fact been in breach. The judge arrived at this decision by making a number of factual considerations such as; the lack of any clear solution for dealing with the concerning behaviour, the fact that she had to manage the rest of the class at the same time, and the lack of training to deal with such issues. The judge came to the conclusion that suspension was adopted as the default position and as largely a knee-jerk reaction, and amounted to a breach of the implied term relating to trust and confidence.
Court of Appeal decision
The Appellant then appealed to the Court of Appeal. The Court of Appeal found that the High Court was not entitled to interfere on appeal with the findings of fact which had been made by the County Court. The context was one in which the employer had to safeguard the interests of very young children, and the County Court was entitled to reach the conclusion that the employer had reasonable and proper cause for the suspension in this case. It follows that the High Court was not entitled to interfere with that conclusion of fact on the appeal before it. Accordingly, the appeal was allowed.
Implications of the judgments
Despite their differing conclusions, the thread of continuity throughout the judgments is that the consideration of reasonableness will largely turn on the specific facts of each case. The detailed judgment clearly setting out the facts of the case provides a useful reference point for schools faced with the prospect of suspending an employee pending an investigation. However, the very different analysis of the same set of facts by both the County Court and the High Court, although legally not permitted in the latter's case, demonstrate the difficulties faced by managers in analysing the specific facts in play to ascertain whether any decision to suspend can ultimately be justified. The way forward is not always clear.
However, the confirmation of the fact that the school was in compliance with statutory guidance in the County Court judgment is a helpful starting point and good indicator for schools. And, as stressed by both the Court of Appeal and the County Court, the consideration of safeguarding is paramount.
The decision does however, highlight the potential uncertainty surrounding suspensions and the difficulties school staff responsible for such decision making face. It is important to fully consider any decision to suspend, and fully document each stage to keep the employee informed and to fully rationalise the decision in a communicable way should reference be needed at a later stage. Given the complexities of the situation, if in doubt take legal advice.