Is suspension a breach of trust and confidence?

19 / 03 / 2019

The courts have again considered the issue of whether suspending an employee in order to investigate allegations against them is a breach of the implied term of trust and confidence.

The case of London Borough of Lambeth v Agoreyo concerned a primary school teacher who was suspended while allegations of using excessive force towards pupils were investigated. 

The High Court had previously held that her suspension was not a neutral act and therefore could only be justified if it was necessary.  It found that the suspension was a “knee jerk” reaction by the employer, not necessary in the circumstances, and therefore a breach of trust and confidence.  However, the Court of Appeal has now overturned this decision, holding that the proper test is whether there was reasonable and proper cause to suspend the employee. The Court effectively dismissed the question of whether suspension is a neutral act as irrelevant.

Impact on employers

The decision in this case restores some freedom of action for employers.  Following the High Court decision in this case, there was a concern that it would rarely be strictly “necessary” to suspend an employee during a disciplinary investigation and therefore the risk of suspension being a breach of trust and confidence was high.

The Court of Appeal’s decision redresses the balance.  It will be possible in many cases for an employer to show that it had “reasonable and proper cause” to suspend an employee pending investigation as that opens up a wide range of reasons that could apply in many different circumstances.  However, it will be important for the employer to demonstrate that it made a considered decision and did not just impose a suspension as a default reaction.