The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Peter Jackson,Lord Justice Irwin |
| Judgment Date | 05 March 2019 |
| Neutral Citation | [2019] EWCA Civ 322 |
| Docket Number | Case No: A2/2017/2469 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2019 |
[2019] EWCA Civ 322
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Foskett
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Lord Justice Peter Jackson
and
Lord Justice Singh
Case No: A2/2017/2469
Caspar Glyn QC and Christopher Milsom (instructed by Browne Jacobson LLP) for the Appellant
Andrew Allen and Stephen Butler (instructed by Radcliffe Le Brasseur) for the Respondent
Hearing date: 29 January 2019
Approved Judgment
Introduction
This is an appeal from Foskett J's judgment of 15 August 2017, in which he allowed an appeal against the order of the County Court at Central London (HHJ Wulwik) made on 12 January 2017. Foskett J, sitting on appeal in the High Court (Queen's Bench Division), reversed HHJ Wulwik's dismissal of the Respondent's claim against the Appellant for damages for breach of her contract of employment.
The Respondent, Ms Agoreyo, was employed at Glenbrook Primary School in South London as a Year 2 teacher. In her early weeks of teaching, three incidents took place involving two children (known in the proceedings as O and Z) with particular behavioural issues. These incidents all involved the use of force by the Respondent to remove one of these two children from the classroom. The Respondent expressed her need to receive additional support in the teaching of these children, but, after five weeks of being employed at Glenbrook, she was suspended pending investigation into the incidents. The Respondent resigned that same day, and subsequently commenced proceedings for breach of contract against the Appellant. She claimed that she had been entitled to resign as a response to what was a repudiatory breach of contract by the Appellant. (I will sometimes refer to the Appellant as the Defendant and the Respondent as the Claimant, where it is more convenient to do so for ease of exposition.)
At first instance HHJ Wulwik addressed the issue of liability only at this stage. He found in favour of the Appellant. He found that the Appellant had not breached the implied term of trust and confidence between the parties, having considered both the specific act of suspension and the Appellant's conduct in the round. Foskett J allowed the appeal of Ms Agoreyo, finding that her employer had been in repudiatory breach of contract, having breached the implied term of trust and confidence in both respects. He therefore substituted judgment in her favour.
Permission to appeal to the Court of Appeal was granted by Underhill LJ on 14 March 2018.
We have had the advantage of written and oral submissions from Mr Caspar Glyn QC and Mr Christopher Milsom for the Appellant; and from Mr Andrew Allen and Mr Stephen Butler for the Respondent. We are grateful to them all, in particular to those representing the Respondent, who do so pro bono.
Factual Background
The Respondent is a teacher. At the time of the material events in November/December 2012, she was aged 43 and had around 15 years' experience of teaching both in the United Kingdom and abroad. She had worked previously with children with special educational needs, but had had no specific training as to how to deal with behavioural difficulties.
On 8 November 2012, she entered into a contract with the Appellant to work as a teacher at Glenbrook Primary School, a community school in Clapham Park, South London. The contract was for a fixed term from 9 November 2012 until 31 August 2013, at an annual salary of £36, 387.
In the circumstances which are discussed more fully below, the Respondent ceased working in this role on 14 December 2012, some five weeks later. She was suspended that day because of the force she used in three incidents involving two children, O and Z (although there is a dispute about whether Ms Agoreyo was told verbally or by letter about the suspension). The Respondent resigned later that same day.
The Respondent, on commencement of her employment, took over from Ms Nancy Wayman to teach one of the two Year 2 classes, dealing with children of the age of 5/6 years. There were 26–29 children in the class, including O and Z, who were aged 6 and 5 respectively at the relevant time. The Respondent's case was that each of these two children had “behavioural, emotional and social difficulties” (“BESD”), an assertion put in issue by the Appellant. The Respondent additionally claimed that she was not told before she accepted the offer of employment that she would “be teaching a class in which there were two pupils with BESD”, and further that she was “also not asked … whether or not she had any experience of teaching a class with one or more children on the autistic spectrum within it”. This was effectively accepted by the Appellant, on the basis that all teachers are required to be able to teach children with special needs.
Foskett J found that, on the evidence, there were clear indications that the two children, O and Z, were indeed difficult to control. The only witness called at the trial before HHJ Wulwik for the Appellant, Ms Tracey Fevrier, noted that “O and Z did … present the most challenging behaviour of all of the pupils in the class”, and acknowledged that at one stage the Head Teacher (Ms Alder) had considered separating them.
In the “Behaviour Book”, parts of which were before HHJ Wulwik and Foskett J, there were three entries in late November 2012 which showed that Z had been swearing a lot, had broken an object that he threw, wiped his spit from a tissue onto another child and swore and screamed at other children, continuing to do so until his parents were called to stop him. The documents that record the “targets” for each of these two children show that “hitting or grabbing” were issues that each had to deal with; and, in Z's case, to use a “talking voice”, not one that involved shouting. In another document, O is said to have found it hard “to share and take turns”, his behaviour is said to be “challenging” and he can easily become upset. Ms Fevrier also acknowledged in a document prepared at the time that there was a “fraught/physical relationship” between O and Z and that each had “behavioural/learning difficulties”.
HHJ Wulwik at first instance held that, nonetheless, “Ms Wayman [the Respondent's predecessor] appears to have been able to deal with any behaviour problems of the two children”. The Defendant's case involved the assertion that Ms Wayman had managed to control the class with only one year's post-qualification experience, as did the Respondent's successor, a newly qualified teacher.
There were three separate incidents involving O and Z in which the Respondent considered that it was necessary to use a degree of force to secure behavioural compliance, taking place on 19 November, 3 December and 5 December 2012. The incidents were alleged to involve the following:
(1) On 19 November 2012, a child, Z, was dragged on the floor out of the classroom door by Ms Agoreyo in the presence of another member of staff and the rest of the children, and that child was heard to cry “help me”. This incident was reported to Ms Alder by Ms Fevrier, but no action was taken at that time.
(2) On 3 December 2012, Ms Agoreyo was seen to drag a child, O, “very aggressively” a few feet down the corridor whilst shouting at him. This incident was reported to Ms Alder via email by Ms Messenger, another member of staff (who was an administrative officer).
(3) On 5 December 2012, O was told to leave the classroom after being unable to follow instructions. When he refused, Ms Agoreyo was heard to shout “if you don't walk then I will carry you out!”, after which she proceeded to pick up the child, who kicked and screamed in the presence of all the class children. Ms Fevrier considered this to be the most serious of the incidents she witnessed, describing it as “heavy handed”, “very disappointing” and “totally unacceptable” in her email report to Ms Alder.
Prior to the occurrence of the incidents, some correspondence took place between Ms Agoreyo and other members of staff in which she sought help with controlling O and Z. Ms Agoreyo's case is that she spoke to Ms Alder on several occasions about the difficulties she was having and told her that she had received no training about how to deal with children such as O and Z. A feature of the case which is not in dispute is that on 20 November, the day after the first incident, the Appellant sent to Ms Alder a text message saying that she wanted to speak to her about O and Z (and one other child).
On the weekend prior to the second incident, which took place on Monday 3 December 2012, there was an email exchange between the Appellant and Ms Alder. One particularly important paragraph of that exchange reads:
“Funmi [Alder], 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… In a nutshell we need members of staff to be more hands-on and helpful.”
Ms Alder replied to this and acknowledged the difficulties the Appellant was facing. She said:
“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.”
After the incident on 3 December took place, Ms Alder spoke again to Ms Agoreyo, providing...
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