Agoreyo v London Borough of Lambeth [2017] EWHC 2019

Scott: The case of Agoreyo v London Borough of Wandsworth involved a disciplinary issue. So tell us about that case, Mark.

Mark: Again, this goes back to things that are very relevant in the workplace. The last case was about warnings. This case was about suspensions. Suspensions are commonplace in the workplace because an employer will say, "We have to invoke the precautionary suspension process in order to ensure that an employee is off-site and that they can't perhaps interfere with witnesses or the investigative process."

The difficulty is if the culture in the organisation is a kneejerk one to suspend as just the default mechanism, then this raises questions about the breach of the implied duty of trust and confidence that's owed to the individual.

What the high court said here very, very clearly . . . and it was very clear that it actually attacked the terminology used by the employer in this instance. The employer had written to this employee – a teacher – to say that the suspension was a neutral act, and the high court seized upon those words and said, "No, no. Suspension is not a neutral act." An inappropriate suspension where other options aren't considered such as redeployment or working from home or whatever it happens to be could breach the implied duty of trust and confidence and put this sort of stigma and Sword of Damocles above the head of this employee.

Scott: But everyone can get that. I've been working for Legal-Island for, what, I don't know, 14 years or something like that. I worked at the Labour Relations Agency for a number of years. You've been here a number of years. If we were to be suspended, the word would go around like wildfire, right? And beyond.

Mark: Yes, yes.

Scott: And no smoke without fire. It's not a neutral act.

Mark: It's not. The employer tried to indicate it in the letter too to say, "Look. We're not prejudging the case. It's not an indication of guilt. It's simply a precautionary measure."

The difficulty is if the culture in the organisation is that that's the default position to suspend first and then ask questions later, that could fundamentally destroy the implied duty of trust and confidence owed to the employee, especially the employee in this particular case, who was a teacher who had responsibility for young children. That reputational harm caused to her may never be repaired. So whether or not the employer paid due cognisance to that is a focal issue here.

The key issue is to be very careful about suspension as a first course of action if there are alternatives given the size, niche, and resources of your organisation. Contemplate them first or implement them first rather than go straight to suspensions.

It's been established in common law since Gogay and Hertfordshire County Council that this could be a breach of the implied duty of trust and confidence, fundamentally destroying the contract and giving the employee the right to resign and claim constructive dismissal.

Scott: Okay. Just going back to the Stratford v Auto Trail case, we had a question come in on the chat window there.