An immovable object and an irresistible force appeared to collide when the Court of Appeal recently considered how a local authority should balance its obligations as an employer and as the carer for a child in its care: Gogay v Hertfordshire County Council, 26 July, 2000.
The question was how should a local authority, with a dual role, respond to what appeared to be a crisis?
It has recently been confirmed that in all contracts of employment there should be implied a term of mutual trust and confidence between the parties: Malik v BCCI [1997] IRLR 462 HL.
There are occasions when suspension is something an employee has to put up with: United Bank v Akhtar [1989] IRLR 507. In such a case a suspension does not constitute a breach of the implied term of mutual trust and confidence. In the case to be considered below, the Court of Appeal did not consider this to be such a case.
It is further established in law that an employer may exercise its discretion to suspend an employee if the exercise of that discretion is not capriciously exercised but rather an administrative necessity to facilitate investigations: Tehrani v Argyle & Clyde Health Board (No 1) [1989] SLT 851. Side by side with the terms implied in contracts of employment, exists the Children’s Act 1989, which requires a local authority to acknowledge that the interests of the child are paramount. Section 47 of the Act provides that if a local authority has reasonable cause to suspect that a child in its care is suffering or likely to suffer significant harm then it should investigate. Prior to the case in question, no Court had had an opportunity to interpret the scope of that section.
Hertfordshire had a child in its care, who had been the victim of sexual abuse by both parents from an early age. This child suffered from a genetic disability that resulted in severe learning and communication difficulties. Hertfordshire was required to assess information from several sources and in various forms, which indicated a situation that merited further investigation.
Hertfordshire was also required to determine how to manage its staff resources when it appeared that one member would be at the centre of such an investigation. That employee was a residential care worker who worked in the small residential home where the child lived. Hertfordshire chose to suspend the employee under section 47 of the Children’s Act 1989, which states that if a local authority has reasonable cause to suspect that a child in its care is suffering or likely to suffer significant harm then it should investigate.
The investigation revealed that there was no cause for concern but the suspension resulted in the employee suffering a psychiatric illness. The employee sued the authority for breach of its contract of employment, in particular for breach of the implied term of mutual trust and confidence.
The employee was successful at first instance, primarily because the breach lay in carrying out the S.47 investigation. The Authority sought
permission to appeal and Lord Justice Roche identified two particular issues that he considered warranted the attention of that court: in what circumstances is it right to suspend and what has to appear to a local authority officer before he orders such an investigation.
The Court of Appeal was satisfied that the S.47 investigation was quite the right course of action and therein lay no breach. Yet the Court considered the question of whether suspension constituted a breach as a separate issue.
It held that suspension can only be lawful if there has been a recognisable protocol, for only then could it be seen that a situation had been properly assessed and a judgment made with the benefit of such information as could be obtained after diligent enquiry. It was held that in this case the decision to suspend had been a knee-jerk reaction. Insufficient consideration had been given to alternative work for the employee and the decision had been unnecessarily rushed. Even in the case of possible sexual abuse of a child with an exceptionally low IQ and genetic communication difficulties, there must be pause for thought.
The suspension letter sent to the employee was another ground for dismissing the appeal. The letter stated that the reason for the suspension was that there had been an allegation of sexual abuse made against the employee. This was not something that the local authority (and fortunately at no other time) had reason to state at the time it wrote the letter. There had been no allegation, only a confusion of information, which may have indicated abuse. Therefore the letter was a further breach of contract because it indicated an inappropriate exercise of the discretion to suspend.
Having established a breach of contract the employee was obliged to prove that the damage she suffered was reasonably foreseeable by the parties at the time the contract of employment was made.
The judge at first instance inferred from the nature of the employment and the type of work carried out by the employee that it was foreseeable that an allegation of abuse was likely to result in such harm as alleged. The judge had heard no evidence to that effect. The Court of Appeal did not interfere with that finding of fact. This emphasised the extent to which the Court of Appeal regarded the letter communicating the suspension as a discrete incidence of breach of contract – apart from the decision to suspend. Hence it was not the fact that the letter was harsh but, in itself, it constituted a breach because it rehearsed a false allegation. The employee was awarded damages for personal injury.
This case highlights a number of guidelines to consider in any employment situation when faced with a situation where suspension may be necessary. Always appreciate the difference between a decision to investigate and a decision to suspend – one should not follow automatically on from the other.
As to a decision to suspend, it must be consciously made on real and proper grounds, which should be recorded in writing and preferably reviewed by a second party. The manner of informing the employee should also be carefully prepared.
Unsubstantiated grounds should not be stipulated. Practices which have evolved by negotiation with the relevant trade union may need re-examining. Finally, those responsible for taking such decisions should be trained to exercise judgement rationally and to record
faithfully the basis for their determination.
There will probably be difficulties in suspending an employee once the Human Rights Act 1998 has come into force, which will lead to a whole new area for misguided but well-intentioned errors such as illustrated in this case.
Lisa Sinclair is a barrister at 7 New Square.
