London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322

London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322 concerned an appeal from the High Court in which the Court of Appeal held that Foskett J had erred in overturning a County Court judgment dismissing a primary school teacher’s claim for repudiatory breach of the implied term of trust and confidence after she was suspended and resigned following three incidents involving use of force on pupils with behavioural difficulties.

Ms Agoreyo had been employed as a Year 2 teacher on a fixed-term contract from November 2012 at an annual salary of £36,387. During her first five weeks, three incidents occurred involving two six- and five-year-old children, O and Z, each of whom had behavioural difficulties. On 19 November 2012 she dragged child Z across the floor out of the classroom door in the presence of staff and other children; the child cried “help me”. On 3 December she was seen to drag child O “very aggressively” a few feet down the corridor whilst shouting. On 5 December she picked up and carried out child O after he refused to leave; he kicked and screamed in the presence of all the class children. Ms Agoreyo had sought assistance in managing O and Z. The head teacher, Ms Alder, acknowledged the difficulties and on 8 December emailed promising additional teaching assistant support from the following week and an individualised programme. On 14 December the Executive Head Teacher, Ms Mulholland, suspended Ms Agoreyo pending investigation. Ms Agoreyo resigned the same day, alleging constructive dismissal.

HHJ Wulwik heard the liability-only trial. He found that the Appellant had not breached the implied term of trust and confidence. He accepted that Ms Agoreyo’s predecessor and successor had coped with O and Z and that Ms Agoreyo, an experienced teacher with 15 years’ experience including work with children with special educational needs, had been given adequate support including an induction, access to teaching assistants, a SENCO assistant, and an educational psychologist. He noted Ms Agoreyo accepted the allegations were serious and required investigation. He held the Defendant had reasonable and proper cause to suspend her and thus had not breached the implied term. He took account of the authority’s duty to protect children and found suspension was required regardless of other considerations, rejecting any suggestion that a full investigation should have preceded suspension as putting the cart before the horse. He dismissed the claim.

On appeal, Foskett J allowed Ms Agoreyo’s appeal and substituted judgment in her favour. He expressed reservations about several of HHJ Wulwik’s conclusions. He accepted that O and Z exhibited extremely challenging behaviour, that no clear solution had been found, that Ms Agoreyo had expressed concerns about her ability to cope and lack of training, and that Ms Alder’s support plan formulated on 8–9 December had not been fully activated by 14 December. He found that there was no evidence the decision-maker had spoken to Ms Alder about her knowledge of events, no evidence the Appellant was asked for her response, and no evidence consideration was given to alternatives before suspension. He held suspension in those circumstances constituted a default position and a largely knee-jerk reaction to the strident terms of Ms Fevrier’s report, relying on the principle from Gogay v Hertfordshire County Council [2000] IRLR 703 that suspension must not be a knee-jerk reaction. He concluded that suspension either by itself or in combination with suspension so soon after promises of support and before that support had been fully implemented breached the implied term of mutual trust and confidence.

The Appellant advanced three grounds. Ground 1 contended Foskett J erred in law by impermissibly substituting his own judgment for the trial judge’s findings of fact. Ground 2 (as reformulated at the hearing) contended Foskett J was wrong to regard suspension as other than a neutral act. Ground 3 (originally Ground 2) argued Foskett J adopted an erroneous approach in law to suspension by incorporating a test of necessity. The Respondent submitted Foskett J was entitled to correct errors of law, that HHJ Wulwik had failed to make findings on crucial issues such as the extent of O and Z’s bad behaviour and Ms Alder’s conclusion that reasonable force had been used, and that Foskett J was right to follow Mezey v South West London and St George’s Mental Health NHS Trust [2007] IRLR 244 in treating suspension as not neutral.

Singh LJ, with whom Peter Jackson LJ and Irwin LJ agreed, allowed the appeal on Grounds 1 and 3. On Ground 1, Singh LJ held that whether there has been a repudiatory breach of the implied term of trust and confidence is both a question of fact and highly context-specific, citing Tullett Prebon plc v BGC Brokers LP [2011] IRLR 420. A finding on reasonableness is an issue of fact not law; an appellate court may interfere only where there is an error of law or where no reasonable court could have reached the conclusion on the evidence, following Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812. Following Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, an appellate review under CPR 52.11(1) required the same approach as formerly under a rehearing. Where the application of a legal standard such as reasonableness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation, citing Biogen Inc v Medeva plc [1997] RPC 1. Singh LJ held that Foskett J nowhere gave himself a direction as to the criteria by which an appeal should be determined, nowhere identified any misdirection in law or other error of principle, and nowhere said the trial judge was “wrong” or had reached a conclusion not open to him. Instead Foskett J expressed only “reservations” and “very strong reasons on the evidence” for a different view. Singh LJ held Foskett J was not entitled to substitute his own view merely because other judges could have approached the issues differently; HHJ Wulwik’s findings were open to him and he did not misdirect himself. He was entitled to conclude the employer had reasonable and proper cause for suspension in circumstances where allegations of misconduct were serious, were accepted as requiring investigation, and concerned safeguarding very young children. The trial judge was not required as a matter of law to make findings on how bad the behaviour of O and Z actually was nor to assess the reliability of Ms Fevrier, as it was not the function of the court to conduct the investigation itself.

On Ground 2, Singh LJ rejected the Appellant’s submission that suspension should be treated as a neutral act. Mezey was citable despite being a permission decision because it was reported and of general importance. The ACAS Code of Practice on disciplinary and grievance procedures did not say suspension was neutral; it said only that it should not be considered disciplinary action. However, whether suspension is a neutral act is not the relevant question; the crucial question is whether there has been a breach of the implied term of trust and confidence, which in the context of suspension requires consideration of whether there was reasonable and proper cause. This is highly fact-specific. Singh LJ rejected Ground 2.

On Ground 3, Singh LJ held Foskett J erred in law by introducing a test of necessity and by formulating a confusing test using “reasonable and/or necessary”. The correct test, derived from Malik v Bank of Credit and Commerce International SA [1998] AC 20, is whether the employer conducted itself without reasonable and proper cause in a manner likely to destroy or seriously damage the relationship of trust and confidence. There is no test of necessity. Although Gogay established that suspension can constitute a breach where it is a knee-jerk reaction without consideration of alternatives, each case turns on its own facts. In Gogay the sole source was a troubled child with a contradictory account. By contrast, in the present case complaints were made by two members of staff relating to three separate incidents involving two different children. In those circumstances the trial judge was entitled to conclude Ms Mulholland had reasonable and proper cause to suspend pending investigation. Foskett J fell into error in his approach. Singh LJ allowed the appeal on Ground 3 and restored the County Court judgment.

In short, the Court of Appeal allowed the appeal and restored the County Court’s dismissal of the claim, holding that Foskett J had impermissibly substituted his own evaluation of the facts and had erred in law by introducing a test of necessity, whereas HHJ Wulwik had been entitled to find reasonable and proper cause for suspension in the circumstances.

Gogay v Hertfordshire County Council [2000] IRLR 703
Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642
Biogen Inc. v Medeva [1997] RPC 1
LB Lambeth v Ag oreyo Railtrack plc v Gui nness Ltd [2003] EWCA Civ 188
Baird v Thurrock Borough Council [2005] EWCA Civ 1499
Emery Reimbold & Strick Ltd [2002] EWCA Civ 605
English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, [2002] EWCA Civ 605, [2002] 3 All ER 385
Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577
Galldorf Takarmanvgvarto Es Kereskedelmi Zartkoroen Mokodo Reszvenytarsasag v Folkestone Magistrates’ Court [2017] EWHC 2019 (Admin)