Disciplinary Investigations: Suspending An Employee May Amount To A Fundamental Breach Of Contract

The High Court has found that the unjustified suspension of an employee constituted a breach of the implied contractual duty of trust and confidence (and therefore a fundamental breach of contract).

When an employer is faced with allegations of misconduct against one of its employees, it will often automatically take the decision to suspend the employee.

Typically, the employer will assert that suspension is necessary to carry out a proper investigation, or be fearful that a failure to suspend may be perceived (in any subsequent proceedings) as an indicator that the alleged misconduct was not that serious.

However, in some cases, suspension is ill thought out and not an appropriate course of action in the circumstances. Conversely, the negative impact on the employee might be considered so severe or the act of suspension so disproportionate that it amounts to a repudiatory breach of the contract, entitling the employee to resign and claim constructive dismissal.

In Agoreyo v. London Borough of Lambeth, Ms Agoreyo was employed as a primary school teacher. She was suspended following allegations that she had used unreasonable physical force towards two pupils, who were known by the school to exhibit particularly challenging behaviour. The Headteacher conducted a preliminary investigation and concluded that reasonable force had been used. However, Ms Agoreyo was later informed by the Executive Head that she would be suspended pending further investigation. Ms Agoreyo responded to this by resigning.

She later filed claims for breach of contract in the County Court, arguing that the actions of the employer amounted to a breach of the implied trust and confidence. She did not have two years' service and therefore did not qualify for unfair dismissal protection. Her case was that the act of suspension was unnecessary and was not reasonably required for the investigation to take place.

The original finding of the County Court was that the employer was "bound" to suspend the employee and had no choice but to do so following the allegations of misconduct. Ms Agoreyo appealed to the High Court.

High Court decision

The High Court reversed the decision on appeal. It concluded that there was no evidence to suggest the employer had no other choice. Further, an argument that the employer had suspended the employee as a result of its overriding duty to protect the children did not stand up because the stated reason for the suspension was to ensure a proper...