Mayor and Burgess of the London Borough of Lambeth v Agoreyo
Shelbourne v Cancer Research UK
For those of you who regularly attend our employment law seminars, you may recall that we have previously spoken about the case of Mayor and Burgess of the London Borough of Lambeth v Agoreyo. It considered the issue of suspension and whether the decision to suspend a teacher was a neutral act or a repudiatory breach of contract.
By way of background information, Ms Agoreyo was an experienced primary school teacher employed by London Borough of Lambeth. She taught classes of up to 29 pupils aged around 5 and 6 years including, on this occasion, two children with very challenging behaviour. Allegations were made that on several occasions Ms Agoreyo had used unreasonable force towards these two children which included dragging one of them out of the classroom, shouting at the other and picking one up and carrying him/her out of the classroom.
Ms Agoreyo was suspended pending an investigation into the allegations. Her suspension letter stated the suspension was a neutral act and did not constitute disciplinary action but that the purpose was to allow an investigation to be conducted fairly. At the same time, Ms Agoreyo handed in her resignation citing “a lot of very unpleasant issues” but did not expand further on what those issues were. She challenged the reasonableness and necessity of the suspension, arguing it was a breach of the implied duty of trust and confidence.
The County Court held that there had been reasonable and proper cause to suspend her and, as such, the implied term of trust and confidence had not been breached. However, the High Court held that the decision to suspend had been a knee-jerk reaction and, in the circumstances, the employer had breached the implied term of trust and confidence.
The matter was appealed to the Court of Appeal which recently handed down its decision and restored the County Court judgment. It is for the employer to decide whether it has reasonable and proper cause to suspend an employee and, given its likely effect on the employee, the employer may decide to consider it as a last resort. As such, the decision by the employer to suspend did not amount to a breach of the implied term of trust and confidence.
The second case to highlight this month considers whether an employer was liable in negligence, or was vicariously liable, for an injury sustained by an employee at a work Christmas party (Shelbourne v Cancer Research UK).
In this case the employer, Cancer Research UK, held its Christmas party at their premises. Each department took it in turns each year to organise the party which mainly consisted of buffet food, oversized games, a ceilidh and a disco. The event was ticket only and open to staff and their guests to attend. A risk assessment was carried out by the head of the department responsible for organising the party who was also trained in completing risk assessments. He regularly undertook these as part of his daily role.
During the Christmas party, Mrs Shelbourne was dancing on the dance floor when a scientist visiting the institute, who was not employed by Cancer Research UK, came up behind her and attempted to lift her off the ground. Unfortunately, in attempting to do so he lost his balance and dropped her which resulted in her sustaining a serious back injury. It was accepted that, during the evening, this employee in question had been drinking and had lifted several other colleagues (without their consent) off their feet putting them back down without any mishap. None of these incidents were reported to the employer. Mrs Shelbourne alleged her employer was liable for her injury, either due to its own negligence or it was vicariously liable for the scientist’s actions. She alleged her employer should have conducted a risk assessment to cover all eventualities, including inappropriate behaviour by those who attended the party, that they should have provided all staff with training in respect of looking out for trouble at the party and that they should have required everyone who attended the party to make a written declaration that they would not behave inappropriately.
The County Court held that, whilst the employer owed Mrs Shelbourne a duty of care, this had not been breached and they were not vicariously liable for the behaviour of the scientist.
The decision was appealed to the House of Lords which upheld the County Court’s decision. They did not consider a reasonable person would consider Mrs Shelbourne’s set of requirements as socially appropriate to impose upon organisers of a social gathering and felt the risk assessment conducted by the organisers was sufficient. With regard to the issue of vicariously liability, the court held that the connection between Cancer Research UK and the scientist related to his research work and not substantial enough for them to be vicariously liable for his actions.
Given the recent cases reported on vicariously liability, namely Bellman v Northampton Recruitment Limited and WM Morrison Supermarkets Plc v Various Claimants, where the employers have been held liable for the actions of their employees, this case serves as a useful reminder that decisions are case sensitive. Whether or not a Court finds an employer vicariously liable will very much depend on the facts of the individual case.
