Tribunal fees held to be unlawful
On 26 July 2017 the Supreme Court ruled that tribunal fees were unlawful. Some commentator are saying that this is a historic ruling. This change means that employees looking to take out a claim, which would have previously cost them up to £1,200 in fees, will no longer have to pay this and are now able to progress a claim without being charged.
The decision was made as the fees were considered ‘inconsistent with access to justice’, making reference to the drop in claims back in 2013 when the fees were first brought in. It was a battle fought by trade unions who have been campaigning for change since the fees were introduced. The trade unions had argued that these fees had reduced access to justice for those on lower incomes and that they were indirectly discriminatory due to a higher proportion of women making discrimination claims.
Employers now face a couple of possible issues that they are now going to need to consider moving forward. There is the potential for historic claims to be made by employees which were, at the time, too expensive to claim. Employers are also going to have to think carefully before taking actions which may leave them open to potential claims.
Some commentators are predicting a mirroring effect to take place now that fees have been scrapped reflecting the downturn previously seen when the fees were brought in, with a large increase in claims likely to take place.
Therefore employers seeking to dismiss or who are involved in any dispute with an employee are advised to get in touch for further information and guidance.
Suspension is not a neutral act
Prior to suspending an employee, an employer must be satisfied that it has reasonable and proper cause for the suspension in order to avoid breaching the implied term of mutual trust and confidence. Suspension cannot be a routine response to the need for an investigation, particularly when very serious allegations of wrongdoing are made against an employee. Suspension must not be a “knee jerk” reaction.
In Agoreyo v London Borough of Lambeth Ms Agoreyo was an experienced teacher who commenced work as a primary school teacher for the London Borough of Lambeth (Lambeth) on 9 November 2012. Ms Agoreyo taught a class of up to 29 five and six year old children, two of whom exhibited extremely challenging behaviour.
Allegations were made against Ms Agoreyo that she had used unreasonable force towards one of these two children on three occasions in November and December 2012, essentially that she had “dragged” a child out of the classroom or along a corridor and that she had carried a child out of the classroom. Two of these instances had been looked into by the Head, Ms Alder, shortly afterwards, who found that Ms Agoreyo had used reasonable force.
On 14 December 2012, the Executive Head of the school, Ms Mulholland, informed Ms Agoreyo that she was suspended in light of these allegations. Ms Agoreyo almost immediately asked if she could submit a resignation letter and Ms Mulholland agreed. Ms Agoreyo’s resignation letter, written while she was still on the premises, was handwritten and was in amicable terms although it referred to “a lot of very unpleasant issues”.
A letter of suspension setting out the allegations stated:
“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.”
Although the matter was escalated, the police decided that there was no basis for criminal proceedings and the Disclosure and Barring Service did not bar Ms Agoreyo from teaching.
Ms Agoreyo challenged the lawfulness of her suspension as being a repudiatory breach of the implied duty of trust and confidence. She did not argue that the allegations against her should not be investigated, but that suspension was not reasonable or necessary in order for the investigation to take place.
The County Court found that Lambeth was “bound” to suspend Ms Agoreyo after receiving reports of the allegations against her. Ms Agoreyo appealed against this finding.
The High Court held that the County Court erred in holding that Lambeth was “bound” to suspend Ms Agoreyo. Further that suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. Taking into account the statutory guidance for local authorities, it was noted that a knee-jerk reaction must be avoided and that suspension must not be the default position. The reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”. The high Court also made various other criticisms of the procedure followed by Lambeth: there was no evidence of any attempt to ascertain Ms Agoreyo’s version of events, or Ms Alder’s knowledge of the events, prior to taking the decision to suspend; there was no evidence of any consideration of alternatives to suspension; and the letter did not explain why an investigation could not be conducted fairly without the need for suspension. These factors, led to the conclusion that suspension was adopted as the “default position” and was “largely a knee-jerk reaction”. Suspension against this background was sufficient to breach the implied term of trust and confidence, particularly given that Ms Alder had previously investigated two of the incidents and had not considered them worthy of disciplinary action. The Court concluded that Ms Agoreyo’s suspension amounted to a repudiatory breach of contract. This was not undermined by a resignation in friendly terms.
For more information, please contact our Employment Team.