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8th March 2019

Tribunal Tale – Appeal updates

The Court of Appeal (CA) has had a busy month, and has recently issued two decisions that are likely to be of interest to employers. In this update we briefly summarise the previous case law and outline what the CA has had to say about it.

Previous decisions

The first appeal decision relates to the case of Agoreyo v London Borough of Lambeth. You can see our original article mentioning that case here. In short, Ms Agoreyo was suspended by a school following allegations that she used unreasonable force on a pupil, despite an initial investigation by the headteacher showing that no such force had been used.

After resigning, Ms Agoreyo claimed in the County Court that her suspension breached her contract, but the County Court found in favour of the local authority and stated that the school was ‘bound’ to suspend her in light of the allegations.

The High Court overturned that decision, finding there to have been a breach of the implied duty of trust and confidence. The Court based its decision largely on the fact that the initial investigations had found no misconduct and that no alternatives to suspension were considered.

The second case in question is that of Crawford v Network Rail. In that case, Mr Crawford worked as a signal box worker, which required him to work alone for the majority of his day. Under the normal rules of the Working Time Regulations (WTR), a worker should be able to take a 20 minute break where more than six hours are worked.

Given the nature of his work, Mr Crawford was often unable to take a continuous 20 minute break, and complained about that to the Employment Tribunal.  That rule does not apply to ‘special cases’, where the nature of the work means that a 20 minute break can’t be taken, although in those circumstances the break time must be able to be taken later.

Network Rail argued that Mr Crawford’s work fit into the ‘special case’ category and that, although he couldn’t take a single 20 minute break, he was able to take sufficient breaks throughout the day to compensate for it. The original Employment Tribunal was swayed by that argument, and found in favour of Network Rail.

The Employment Appeal Tribunal disagreed, stating that one break in the day should be at least 20 minutes long in order to comply with the WTR. Accordingly, it upheld the appeal.

Appeal decisions

In Agoreyo, the CA has now reinstated that original decision of the County Court, finding there to have been no breach of trust and confidence. The CA stated that the legal test to be applied in cases of suspension was whether the employer had ‘reasonable and proper cause’ to suspend.

The CA went on to say that the High Court had erred in requiring the school to establish that the decision to suspend was ‘necessary’, stating that that was too high a threshold.

Under the circumstances, the CA held that it was reasonable for the County Court to have found that the school had just cause to suspend Ms Agoreyo, and it allowed the local authority’s appeal.

Network Rail’s appeal was also allowed. Quite simply, the CA stated that it could see no reason why a break had to be for a minimum of 20 minutes if breaks could be taken intermittently throughout the day.

What does this mean?

Both decisions should be helpful to employers, and more so because they come from one of the higher courts and are binding on the Employment and Appeal Tribunals.

The new decision in Agoreyo may give employers some comfort in that decisions to suspend can now be made based on whether there is reasonable cause to do so. Of course, this does not provide employers with carte blanche to suspend whenever they want to, and suspension should still not be a knee-jerk reaction to any act of misconduct.

However, in situations where there is some risk to the organisation, its employees, third parties or the misbehaving employee, it is likely to be easier to justify suspension. Examples of such circumstances could include allegations of abuse in a school setting, allegations of harassment or bullying, or where it could jeopardise the employer for the employee to have continued access to IT systems.

Each case should be decided on its own merits, and it will still be prudent for the employer to carry out some initial investigation before deciding on whether suspension is appropriate.

The Crawford case will be good news to employers who have employees working on their own, or in work that makes taking a longer single break a challenge. Employers must still ensure that those employees get adequate breaks, but in similar circumstances to Mr Crawford’s it may be acceptable if those breaks are short ones spread throughout the working day.

However, this decision applies only in limited contexts, such as the special cases referred to above or where the employee engages in shift work. In other roles, if there is no justified barrier to taking a 20 minute break, the employer must still comply with the basic rules of the WTR in that regard.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

8th March 2019