Court of Appeal finds for local authority over teacher suspension

The London Borough of Lambeth has won an appeal over the suspension of a primary school teacher after it had earlier won in the County Court but lost a High Court appeal.

In London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322 the Court of Appeal said Foskett J had erred by substituting his own judgment for that of HHJ Wulwik in the county court.

Simone Agoreyo was employed to teach five-and-six year old children but in her first few weeks three incidents took place involving the use of force to remove two children with behavioural issues from the classroom. She had previously expressed her need to receive additional support in the teaching of these children. Ms Agoreyo was suspended and resigned the same day.

She began proceedings against Lambeth for breach of contract, arguing she had been entitled to resign as a response to its repudiatory breach of contract.

HHJ Wulwik found Lambeth had not breached the implied term of trust and confidence between the parties, but in the appeal Foskett J found Lambeth in repudiatory breach of contract, and substituted judgment in Ms Agoreyo’s favour.

Lambeth argued Foskett J erred in law by impermissibly substituting his own judgment for the trial judge's findings of fact.

The council also said he adopted an erroneous approach in law to the question of suspension and that the test he used establish whether the suspension breached the implied term of trust and confidence was not well-founded in law.

Giving judgment, Singh LJ said: “I am acutely conscious that the appeal before the High Court was heard by a very experienced judge. However, it is said that even Homer nodded on occasion.

“With great respect to Foskett J I have come to the conclusion that…the High Court was not entitled to interfere with the findings of fact which had been made by HHJ Wulwik in the County Court, since it was considering an appeal and was not sitting at first instance.”

He said Foskett J had not given himself a direction as to the criteria by which such an appeal should be determined.

“Nowhere in his judgment does he identify any misdirection of law or other error of principle by the trial judge,” Singh LJ said.

“Nowhere in his judgment does he say that he has concluded that the trial judge was ‘wrong’ or that he had reached a conclusion on a matter of fact which was not open to him on the evidence.”

Singh LJ said the case depended on whether Lambeth’s response to the allegations of use of force had been reasonable and proper, and if it was “it could not be said that the employer had breached the implied term of mutual trust and confidence.

“Bearing in mind that the context was one in which the employer had to safeguard the interests of very young children, it seems to me that the trial judge was entitled to reach the conclusion that the employer had reasonable and proper cause for the suspension in this case. It follows that the High Court was not entitled to interfere with that conclusion of fact on the appeal before it.”

Singh LJ said suspensions depended on whether there was a reasonable and proper cause, which was “a highly fact-specific question. It is not a question of law”, and resolving whether it was ‘neutral’ would be unlikely to help in resolving any of the fundamental questions in the case.

“The act of suspension was not, on the facts of this case, a breach of the implied term of mutual trust and confidence – or, at least, which is the crucial point, that conclusion was one which was open to the trial judge,” Singh LJ said.

“I respectfully consider that, in interfering with that conclusion, Foskett J himself fell into error in the approach which he took.”

Mark Smulian