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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB) (15 August 2017) URL: https://www.bailii.org/ew/cases/EWHC/QB/2017/2019.html Cite as: [2018] ELR 159, [2017] EWHC 2019 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SIMONE AGOREYO |
Appellant/ Claimant |
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- and – |
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LONDON BOROUGH OF LAMBETH |
Respondent/ Defendant |
____________________
CHRISTOPHER MILSOM (instructed by Browne Jacobson LLP) for the Defendant
Hearing date: 20 July 2017
____________________
Crown Copyright ©
Mr Justice Foskett:
Introduction
Background
"… while there is evidence from … Ms Wayman's interview notes from 17 December 2012 … and from the undated targets for the two children … that there had been problems with the behaviour of the two children, Ms Wayman appears to have been able to deal with any behavioural problems of the two children. … Ms Wayman's interview notes … referred to a problem at the beginning of September 2012, the notes stating,
'TF [that is Tracy Fevrier] and I discussed what to do as I don't think you can physically remove a child from class. We knew they were aggressive towards one another and so we would send for another adult who would ask them to leave the room which they happily did, as this was not the challenging adult. I suggested this to Miss Agoreyo but my advice was not taken'.
"A person to whom this section applies may use such force as is reasonable in the circumstances for the purpose of preventing a pupil from doing (or continuing to do) any of the following, namely—
(a) committing any offence,
(b) causing personal injury to, or damage to the property of, any person (including the pupil himself), or
(c) prejudicing the maintenance of good order and discipline at the school or among any pupils receiving education at the school, whether during a teaching session or otherwise."
"I must write to inform you of a decision taken today to suspend you from duty on your normal rate of pay with immediate effect.
This is a precautionary suspension, in line with the disciplinary procedure, pending a full investigation into allegations:
That on 3rd December 2012 you were seen to "drag a child, very aggressively, a few feet down the corridor whilst shouting at him".
That on 19th November 2012 a child was dragged on the floor, out of the classroom door by yourself in the presence of another member of staff and the rest of the children and was heard to cry "help me".
That on 5th December 2012 a child with special educational needs was told to leave a classroom, as he was unable to follow your instruction. When he refused, you were heard to state "If you don't walk then I will carry you out!" You then proceeded to pick up the child who kicked and screamed in the presence of all the class children …."
"The suspension is a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted fairly.
Every effort will be made to complete the investigation as quickly as possible. You will be informed immediately if at any stage during the investigation or if applicable at any stage of the disciplinary process it is considered appropriate that your suspension should be lifted.
During the period of your suspension, information on the allegations will be thoroughly investigated. As part of these investigations, you will be invited to an investigation meeting where you will be given full opportunity to provide your account of the alleged events.
Following the investigation, a decision will be made as to whether or not there is a case for you to answer and you will be informed accordingly.
I assure you that the confidentiality of the process will be strictly maintained by management and would ask that you maintain the same confidentiality. You should not discuss the details of the allegations or your suspension with any person except those named in this letter or your chosen representative."
"11. Mr Supperstone accepts that it is perfectly permissible to restrain a dismissal, but he contends that a suspension is a qualitatively different affair. It is, he submits in the skeleton argument:
"a neutral act preserving the employment relationship".
12. I venture to disagree, at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean that it cannot be done, but it is not a neutral act. Indeed, Mr Supperstone goes on in his skeleton argument to justify the suspension on the grounds that the criticisms of the claimant in the most recent report were serious and that she had — I use his word — "failed" to accept the criticism of her in the two previous reports.
13. The justification of all this awaits the judgment of the disciplinary tribunal, but it seems to me inescapable that the Trust's decision to suspend the claimant meanwhile was not and could not be expected to be a neutral act. Like the court in its turn, the Trust was trying to do the best thing for the time being, but in the judge's considered view it had arguably mistaken its legal powers in so doing."
- If an allegation is made against a teacher the quick resolution of that allegation should be a clear priority to the benefit of all concerned. Any unnecessary delays should be eradicated.
- In response to an allegation all other options should be considered before suspending a member of staff: suspension should not be the default option. An individual should be suspended only if there is no reasonable alternative. If suspension is deemed appropriate, the reasons and justification should be recorded by the employer and the individual notified of the reasons.
"55. Did the authority's conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that 'the issue to be investigated is an allegation of sexual abuse made by a young person in our care.' Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one's employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was 'reasonable and proper cause' to do this.
56. In my judgment there clearly was not. The information considered [at the] strategy meeting was indeed 'difficult to evaluate'. The difficulty was in determining what, if anything, [the alleged victim] was trying to convey. It warranted further investigation. But to describe it as an 'allegation of sexual abuse' is putting it far too high. A close reading of the records coupled with further inquiries of the therapist were needed before it could be characterised as such.
57. Furthermore there was then a need to consider carefully what to do about the member of staff concerned. Was there indeed any reason to suppose that she had broken the guidelines for working with [the alleged victim]? How easy would it be to check? If there was some reason, however slight, it might indeed be right to separate her from [the alleged victim] for a short time. But how should this be done? Miss Sinclair [for the Defendant] argues that transfer was impossible because all the people in their care are vulnerable. But that leaves out of account the particular circumstances in this case. It is difficult to accept that there is no other useful work to which the claimant might not have been transferred for the very short time that it ought to have taken to make the further inquiries needed. It is equally difficult to accept that some other step might not have been contemplated, such as a short period of leave. In any event, given the timescale involved, what was the rush?
58. The authority's own guidelines point out that 'child sexual abuse rarely needs to be responded to as a crisis, but calls for a cool, clear and structured response' …. Instead what happened here was an immediate 'knee jerk' reaction. Had [the person deciding on suspension] had a clearer picture of the limited information available to the strategy meeting, the difficulty in evaluating it, and the simple inquiry needed to deal with the meeting's principal concern, she would surely have hesitated before sending a letter in the terms which she did. Her evidence was that she was 'amazed' that there had been a section 47 investigation and a suspension for what turned out to be no cause."
"The defendant was entitled and indeed bound to suspend the claimant after receiving reports of the allegations from colleagues, namely Ms Fevrier and Ms Donna Messenger, the latter being a teacher …."
"However, there is no suggestion there that Ms Alder met with Ms Messenger who reported what she had witnessed on 3 December 2012: See again Ms Messenger's email to Ms Alder …."
"In my judgment, the defendant clearly had reasonable and proper cause to suspend the claimant. It has an overriding duty to protect the children pending a full investigation of the allegations. That could only be achieved by the suspension of the claimant until the allegations were fully investigated, regardless of any other considerations."
"Funmi, I know you are encouraging us the best you can but you know Joanna and I are having some challenging times with those children so please when you can could you speak to other members of staff to be hands-on ready to help us as a team rather than point hands or whisper behind our backs that we are not controlling the children enough? The situation I explained to you at Friday assembly was quite disappointing. Not one teacher raised a hand to help Joan or myself when they saw the way we were struggling to calm them down. It really shouldn't be like that. Similarly the case outside when [Z] went on a slapping spree. Not one of the dinner ladies reported it to myself or Tracey and a lot of children were involved. I just don't want a situation where the children become too scared of coming to school or say no one does anything about it … and no one helps or they have bad memories about year two because of [Z and O]. The children are putting up with a lot of interference in their learning. I'm yet to see a teacher who can teach effectively when those disruptions start. In a nutshell we need members of staff to be more hands-on and helpful."
"I will and am ensuring the most effective support is in place. We need year two to be a great success. You have made a positive start and I see [? no] reason we should not be able to iron out current difficulties. Much is part of the transition process."
"I hope you will be getting plenty of rest this weekend. I know the last few weeks have been a challenge. For next week and the week after, you and Joan will be released each afternoon on Tuesday to Friday to give us time to properly induct you both as new staff. I will be speaking to Rachel about getting individualised programs in place for [Z and O] ASAP. I am also going to look into arranging for additional adult support in both classrooms by the end of next week. I will also give in class support and guidance ….
Have a relaxing weekend, and I look forward to seeing you on Monday. We shall overcome!"
"Morning Simone. I apologise that I have just tried to phone you – far too early for a Sunday. I just wanted you to know that I have listened to your concerns about the class and have made the decision to appoint an additional TA so that Tracy can be a class TA. I hope to have someone in place on Tuesday or Wednesday. I hope you are having a relaxing weekend and look forward to seeing you on Monday. Funmi."
"Thank you for your text and email. I am sorry for the late reply. I had quite a lot to do this weekend. I am very grateful for the help and support that will be put in place for [Z and O] because they desperately need this as well as to reduce/eliminate the constant disruptions in the classroom during lessons. In the interim, I'm still not sure how the rewards and sanctions work especially for [O] and to implement them. On Friday, he started kicking off again because he wasn't chosen to pick the attendance prize for the class. He kicked a child in the process. I told him to stop but he wouldn't so I held him from behind as you suggested but it only made the kicking worse. I sent a child call you but no one came (not exactly sure whether the child went) ….
…
I am sorry I still have a lot of questions and things to be sorted out but hopefully everything will gradually fall in the right places and indeed we shall overcome. It may seem slow but the children are gradually making progress. This week I will be moving up two children from the lower table who have consistently been well focused (more than children in my middle group).
Hopefully it will get better and better. Thanks again. See you tomorrow."
"… insofar as training and support are concerned, the [Appellant] spent one day observing the class with their previous teacher, Ms Wayman. She stated in evidence that she would have liked two days for her induction, though she was aware that she was required to start her employment the following day. The head teacher, Ms Alder, was prepared to release the [Appellant] for further induction: See Miss Alder's email of 9 December 2012 .... In addition, the [Respondent] provided a further teaching assistant, Ms Keziah Williams, in the last week of the [Appellant's] employment in response to the [her] request for further support in her email to Ms Alder of 6 December 2012. That meant that the [Respondent] was providing three teaching assistants, namely Ms Williams, Mr Gayle and Ms Fevrier, access to an educational psychologist and a SENCO assistant, Ms Costick, apart from the induction with the outgoing teacher, Ms Wayman. It is difficult to see what further support there should have been for an experienced teacher."
"Dear Ms Alder,
RE: RESIGNATION FROM POST OF YEAR 2 TEACHER
I write with reference to the above mentioned issue.
I am grateful for your support and guidance since I started on the 9th of November.
There have been a lot of very unpleasant issues especially on the matter of proper communication that have led to this final decision but I believe after all things considered it is the best decision for me to make at this time.
Once again, thank you for everything. I am very pleased with the gradual progress the children had already started to make. I am sure with the proper support put in place they will continue to make good progress.
Have a good Christmas.
Yours sincerely,
Miss Agoreyo"
"Dear Simone
Resignation Confirmation
I acknowledge receipt of your resignation email, dated 14th December 2012 advising us of your intention to resign from your post of fixed term Year 2 Class teacher at Glenbrook Primary School. I can confirm that your resignation has been accepted and your last day of service with Glenbrook Primary School will be today, Friday 14th December 2012. However, you'll be paid up to 31st December 2012.
Your final salary will be paid on 14th December 2012 via your bank account and your P45 sent to your home address.
In order that all the final clearances can be made as quickly as possible you should:-
return any School/Council property including your swipe card, mobile phone, laptop, blackberry, PDA, name badges, keys and parking permit etc.
ensure that any overtime, expenses or other similar claims are submitted to the School Business Manager to be sent to Payroll before your final week of service. Payments for forms submitted late will be made separately after your leaving date.
Please note that if your last day of service falls within the second half of the month (i.e. between 16th and 31st), you may only be paid on the normal pay day up to and including the 15th of that month. Any remaining salary will be paid on the next scheduled pay run.
Any outstanding loans or other monies to be recovered will be deducted from your final pay, unless you have made alternative arrangements. If it appears that there will be insufficient funds in your final pay, action may be taken by the School/Lambeth's Income Recovery department (if school uses Lambeth Payroll Services).
In the light of the circumstances of your resignation, we have no option but to refer this matter to the London Borough of Lambeth Child Protection Team.
If you require any further information, please contact me on the number below.
Yours sincerely
Janet M Mulholland
Executive Head Teacher"
"The suspension letter of 14 December 2012 was endorsed at the top of the first page with the words in manuscript, 'Original taken by JM and given to SA 14/12/12' …. It is also worth noting that on the top left hand side of that letter there appeared the words 'By hand. Private and confidential'."
I find on a balance of probabilities that the suspension letter was given by Ms Mulholland to the [Appellant] on 14 December 2012 as evidenced by the manuscript endorsement on the letter …."
"… that the [Appellant] was told that she was being suspended and the details of the allegations on 14 December 2012, and that [her] response was to resign, … in effect jumping before she was pushed. I find that the most likely explanation for [her] resignation was that she was seeking to avoid a full investigation of the allegations, which in the event still took place."
"If those persons acting on behalf of the Defendant who made the decision that the Claimant should be suspended had analysed the matter carefully then they would have seen that ... the acts of the Claimant about which complaint was made could not reasonably have been said to be wrongful, let alone such as to justify her suspension."
(1) Did the defendant fail to comply with any aspect of the guidance to which reference is made in paragraphs 24 and 25 of the particulars of claim, whether issued by the Secretary of State or otherwise, and if so which part or parts?
(2) Did such a failure or did such failures amount to a breach of the implied term of trust and confidence by the defendant?
(3) Was there reasonable and proper cause for suspending the claimant from her employment on 14 December 2012?
(4) If there was no such reasonable and proper cause, was the claimant's suspension a breach of the implied term of trust and confidence?
(5) Was there in any event a breach of the implied term of trust and confidence in the form of such failure or failures as have been determined by the Court to have occurred in answer to question 1 above taken together with the suspension of the claimant?
"I would add by way of postscript that like the defendant I am of the view that these proceedings were a blatant attempt by the claimant to recover, through the back door of a claim for breach of the implied term of trust and confidence, damages for what was otherwise a constructive, unfair dismissal claim, which an employment tribunal would have been precluded from hearing because the claimant's employment with the defendant lasted less than the requisite period of two years."
"16. The claimant, in paragraphs 24 and 25 of the particulars of claim, pleaded reliance on guidance issued by the Secretary of State in relation to the education of children with special educational needs (SEN), including children with behavioural, emotional and social difficulties (BESD) and/or who were on the autistic spectrum. Paragraph 24 of the particulars of claim simply listed a number of guidance documents without specifying the particular passages of the guidance relied on. Paragraph 25 of the particulars of claim did refer to paragraph 1.21 of the Special Educational Needs Code of Practice issued in 2001, requiring the governing body of the school to 'do its best to ensure that necessary provision is made for any pupil who has special educational needs' and 'ensure that where the responsible person - the head teacher or the appropriate governor - has been informed by the LEA that a pupil has special educational needs, those needs are made known to all who are likely to teach them'. The particulars of claim did not otherwise seek to identify the particular passages of guidance documents relied upon. The defendant, for its part, did not dispute the existence of the voluminous guidance referred to in paragraphs 24 and 25 of the particulars of claim.
17. The first difficulty that the claimant has in relation to the first issue is that it presupposes that the relevant passages of the guidance relied upon by the claimant have been pleaded in the particulars of claim, but other than the reference to paragraph 1.21 of the SEN Code of Practice the relevant passages of the guidance referred to were not pleaded."
"The claimant's allegation that the defendant failed to comply with aspects of the guidance documents listed in paragraphs 24 and 25 of the particulars of claim fails on both pleading grounds and on the evidence."
"It was not part of the claimant's pleaded case in the particulars of claim that the claimant should have been interviewed by Ms Mulholland and asked for her response to the allegations before suspension was considered, as I pointed out to the claimant's counsel in closing submissions."
Discussion
(i) that Z and O were children who exhibited extremely challenging behaviour and had done so prior to the Appellant becoming their class teacher;
(ii) that no clear solution to dealing with that behaviour, when at the same time handling the rest of the class, had been found even prior to the Appellant's arrival, but certainly thereafter;
(iii) that the Appellant expressed to Ms Alder concerns about her ability to deal with Z and O and her lack of training to deal with such issues as soon as she appreciated the problem;
(iv) that the Appellant had told Ms Alder that some members of staff were not being as helpful as they could be when it came to dealing with these problems;
(v) it was not until the weekend of 8/9 December (and thus after all three of the incidents now relied upon had taken place) that Ms Alder formulated a detailed plan for assisting the Appellant;
(vi) by then Ms Alder had inquired about at least the incidents on 19 November and 3 December (and may well have known about the incident on 5 December) and had concluded that no more than reasonable force was used;
(vii) by the time the Appellant was told she had been suspended (on the morning of 14 December), Ms Alder's plan had not been activated fully;
(viii) prior to the decision to suspend the Appellant was made –
(a) there is no evidence that the decision-maker (presumed to be Mrs Mulholland) had spoken to Ms Alder about her knowledge of what had occurred;
(b) there is no evidence that Mrs Mulholland asked Ms Alder about the support put in place for the Appellant;
(c) the Appellant was not asked for her response to the allegations;
(d) there is no evidence that consideration was given to any alternative to suspension before the decision to suspend was taken.
Conclusion