The employee was a primary school teacher engaged on a fixed-term contract. Although she had 15 years’ experience teaching children with special needs she had no prior training for children with behavioural difficulties. Allegations were made against the employee that she had used unreasonable force when restraining two ‘challenging’ children in her class on three occasions.
Although the school’s head teacher looked into two of the allegations and found the force used was reasonable, the Executive Head decided to suspend the teacher to allow a full investigation to be conducted ‘fairly’. The letter of suspension stated it was a ‘neutral action’ and the matter was also referred to the Police and the DBS.
When told she was being suspended the teacher resigned claiming that the suspension was not reasonable or necessary and that it had breached the implied term of mutual trust and confidence. This, she claimed, breached her contract of employment and entitled her to make a further claim for constructive, unfair dismissal.
County Court and High Court
The County Court originally dismissed her claim, finding that the school had been ‘bound’ to suspend her on receipt of the allegations. They also outlined that there was a reasonable and proper cause to suspend her on the grounds of the overriding duty to protect children.
This decision was overturned by the High Court, who explained that the suspension was not reasonable or necessary because the purpose for the suspension was to investigate the allegations and not to protect children. The school had failed to ask the employee for her version of events before making this decision, consider any alternatives to the suspension and explain why the investigation could not be conducted fairly without it. This ‘knee jerk’ reaction was sufficient to breach the implied term of mutual trust and confidence.
Court of Appeal
The Court of Appeal disagreed with the High Court.
In forming their conclusions, the Court held that the crucial question to answer when looking at whether there has been a breach of the implied term is whether there was a reasonable or proper cause for the suspension. Whether or not suspension is a ‘neutral act’ will not help to answer this. This is a question that should be determined on the facts of each case and tribunals should look at the following:
- the manner of suspension
- the events preceding the suspension
- whether the suspension was a ‘knee-jerk reaction’
- if the facts of the allegations require suspension
If the suspension is not reasonable on the basis of these facts, it may amount to a breach of contact.
Whether a decision to suspend the employee does amount to a breach of contract will depend on the facts as to whether there was reasonable and proper cause to suspend. Despite this, organisations should not just jump to using suspension when investigating allegations. All the facts of the matter need to be considered and alternatives should be reviewed even when the contract entitles them to suspend the employee.