It was not unreasonable for a school to immediately suspend a teacher who had been reported for dragging a child across a classroom floor, the Court of Appeal has ruled.
The successful appeal by the London Borough of Lambeth overturns a previous High Court decision that the act of suspending Ms Agoreyo was an unreasonable “knee jerk” reaction that breached the implied trust and confidence she should have had in her relationship with her employer.
Three Court of Appeal judges concluded that the school’s headteacher had “reasonable and proper cause” to suspend Agoreyo pending an investigation into her actions.
Agoreyo began working at Glenbrook Primary School in south London as a year two teacher in 2012. She had worked previously with children with special educational needs, but had not undertaken any specific training in dealing with behavioural difficulties.
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Agoreyo told the tribunal two of the children in her new class had "behavioural, emotional and social difficulties (BESD)" and claimed she was not informed before she accepted the offer of employment that she would be teaching students with such issues.
In the class ‘Behaviour Book’, three entries in late November 2012 suggested Pupil Z had been swearing repeatedly, had broken an object that he threw, wiped saliva from a tissue onto another child and swore and screamed at classmates. The documents that recorded targets for Z and another child, O, showed that "hitting or grabbing" were issues for both.
On 19 November 2012, Z was dragged across the floor and out of the classroom door by Agoreyo in the presence of another member of staff in an incident witnessed by the rest of the class. The tribunal heard the child was heard to cry: "Help me". The incident was reported but no action was taken at that time.
In early December, Agoreyo was witnessed dragging O "very aggressively" a few feet down the corridor while shouting at him. Two days later, O was told to leave the classroom after being unable to follow instructions. When he refused, Agoreyo was heard to shout: "If you don't walk then I will carry you out", after which she proceeded to pick up the child, who kicked and screamed in response. Ms Fevrier, a teaching assistant, considered this to be the most serious of the incidents she witnessed, describing it as "heavy handed", "very disappointing" and "totally unacceptable".
Agoreyo ceased working at the school on 12 December 2012, the day she was suspended and five weeks after she started. In a subsequent letter, executive headteacher Ms Mulholland told Agoreyo the suspension was “a neutral action and not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.”
Sitting for the High Court, Mr Justice Foskett held the suspension was a breach because it had not been “reasonable and/or necessary” for the teacher to be suspended pending an investigation into her alleged misconduct. He stated that a "reasonable and proper" approach would have involved consideration of alternative courses of action.
However, judges behind the latest decision said Foskett “fell into error” when he overturned an initial ruling handed down by Judge Wulwik at the County Court.
Wulwik had said: “The defendant had to consider its duty to protect the children first and foremost. The belated suggestion by [Agoreyo] in her evidence that there should have been a full investigation before she was suspended would have been putting the cart before the horse."
He ruled the employer’s actions did not constitute a breach as they had not conducted themselves in a manner “calculated or likely to destroy or seriously damage the relationship of confidence or trust between employer and employee”.
Laura Welchew, senior associate at Trowers & Hamlins, said the case meant employers would be able to suspend individuals in order to investigate misconduct without worrying about automatically breaching the implied term of trust and confidence.
However, she added: “It is worth noting that the issue of suspension is always going to be highly fact specific, and in this instance there were safeguarding concerns which made the employer's action reasonable.”
Welchew said other alternatives should always be considered first, and before imposing a suspension an employer should always ensure they have have reasonable grounds to suspend. Any suspension policy should be operated consistently to avoid potential discrimination claims, she added.
“If contracts do not already contain an express right to suspend in the event of serious misconduct then employers should consider the insertion of such a right. Unless there is a clear contractual right to do so, an employer will not be able to suspend an employee without pay, so while a suspension takes effect the employee should continue to receive their normal pay and benefits."
A Lambeth council spokesperson said: “We are pleased that the Court of Appeal has reinstated the County Court decision that the school acted reasonably in this matter in suspending the employee concerned pending an investigation into the allegations.”