The suspension of teachers when allegations against them concern the safeguarding of children
Author: Darren Newman
With the Court of Appeal due to hear the appeal against the High Court decision in Agoreyo that the suspension of a teacher was a repudiatory breach of contract, consultant editor Darren Newman looks at the issue of suspension when it relates to safeguarding concerns.
This month the Court of Appeal will hear the appeal in Agoreyo v London Borough of Lambeth. This is the case where a teacher resigned on the day she was suspended for allegedly using inappropriate force when dealing with two challenging children. She successfully argued in the High Court that her suspension was a knee-jerk reaction amounting to a fundamental breach of contract (she did not have the continuous service needed to claim unfair dismissal, so was forced to bring a breach of contract claim in the civil courts). The case has caused widespread concern in the education sector where there is a strong urge to suspend teachers whenever allegations are made that concern the safeguarding of children. This is despite the fact that statutory guidance issued by the Department for Education in 2018 stressed that, when allegations of abuse are made, the suspension of the accused employee should not be the default option and should take place only when there is no reasonable alternative.
The problem is that, in a school environment, alternatives to suspension are hard to come by. If there are any grounds for concern that an employee may pose a risk of harm to children, the employer will want to ensure that they are completely removed from any environment where children are present. Where an individual is employed at a school, the chances of finding some alternative to suspension when a safeguarding allegation is made are pretty small.
This is not to suggest that employers should be blasé about suspending employees in these circumstances. There is nothing "neutral" about a suspension - it is a measure that can cause intense distress to the employee and seriously damage trust and confidence. The question is whether or not the employer has "proper cause" for taking that step. Previously it had been accepted that there may be breach of contract if there is no coherent allegation made against the employee or if the suspension continues for an unreasonable length of time. What makes the Agoreyo case different is the finding that the suspension was a breach of trust and confidence from the moment it was imposed, allowing the teacher to resign within a matter of hours. If that view is upheld by the Court of Appeal, it will leave many schools concerned about how they can protect children when allegations of misconduct are made.
The High Court stressed that there was no reason to believe that Ms Agoreyo posed any general risk to children. The allegations against her centred on incidents involving two disruptive children in relation to whom she had already sought help and support from the headteacher. It was clear to the High Court that the issue was not alleged abuse, but whether or not it was reasonable and appropriate for her to use physical force in the particular situation that she faced. Such an assessment is not always easy to make in the immediate aftermath of an allegation being made. The statutory guidance says that, when an allegation is made against a teacher, the school should take advice from the local authority dedicated officer (LADO) responsible for the safeguarding of children. The LADO can offer advice and guidance as to how the allegations should be dealt with and what other agencies (such as the police) should be involved. It may well be, for example, that the LADO will consider the allegations and advise that there is no need to remove the employee from further contact with children, in which case there may be no need for them to be suspended. The question is what the school should do while it is seeking that advice. Sending the employee home pending a decision about how to proceed would seem to be a reasonable step. Perhaps the problem with Agoreyo is that there was no suggestion that the employee was being sent home for a brief period while appropriate advice was being sought. Instead she was given a formal notification of suspension, making it clear that she would remain suspended throughout the investigation. It is not clear that this decision was taken following advice from the LADO. It is also worth noting that the letter informing Ms Agoreyo of her suspension said that the purpose of the suspension was "to allow the investigation to be conducted fairly". The letter did not say that the school felt it necessary to suspend in order to protect children.
One of the challenges facing local authorities in relation to schools is that the responsibility of the employer is split between the governing body of the school and the local authority. The local authority is ultimately held liable as the employer and the school must consider its advice in relation to disciplinary proceedings - but in other respects the school operates as an employer in its own right, with its own disciplinary procedures. This can make it difficult for local authorities to ensure a consistent approach to issues such as allegations against teachers. I would not like to predict the final result of the claim in Agoreyo, but I think it is safe to say that the school would have benefited from specialist advice as to how to handle what was obviously a difficult situation. One of the concerns raised by Agoreyo is that a conflict may arise between a school's safeguarding duties and its legal obligations towards employees. But this need not be the case. Schools should be encouraged to adopt specific policies explaining their approach when safeguarding allegations are made against members of staff. If these policies emphasise that the employee may be sent home for a brief period while the advice of the LADO is sought and the allegations are assessed - with a formal decision on whether or not to suspend being taken afterwards - it is unlikely that such an approach would breach trust and confidence. Schools should never do anything that compromises the safety of the children in their care. Local authorities can help them ensure that this does not mean that they have to risk treating employees unfairly.