Head teacher’s failure to disclose relationship justified dismissal

In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court has upheld an employment tribunal’s decision that a head teacher’s failure to disclose to the school governors her relationship with a person convicted of making indecent images of children was a sufficient reason for dismissal.

The head teacher was under a contractual obligation to assist the school’s governing body in discharging its duty to safeguard the pupils; she should have realised that the relationship created a potential risk to the children at the school, which required the assessment of the governors.

Background

R was appointed as head teacher of a primary school in 2009. Since 1998 she had maintained a relationship with S, while they were not romantically attached, the relationship was more than a financial one.

In February 2010, S was convicted of making indecent images of children and was made subject to a sexual offences prevention order, which forbade him from having unsupervised access to children under 18. R sought advice from various people about whether she ought to disclose her relationship with S and his offence to the school. She understood that it was not necessary and so did not do so. When the school subsequently became aware of R’s relationship with S and his conviction, it summarily dismissed her for gross misconduct. The school took the view that, given R’s key role in child safeguarding and protection, she should have known that any concern in this regard, no matter how small, should be disdraft. It considered that her failure to disclose her relationship with S showed a lack of understanding by her, both of the concerns of the governors and the potential risk posed to the children in her care. The school stated that, if R had accepted her error, it might have considered an alternative sanction to dismissal, particularly in light of her unblemished disciplinary record. However, her ‘failure to recant’ led the school and governing body to believe that dismissal was the only appropriate sanction.

Claim of unfair dismissal

Following an unsuccessful appeal against this decision, R brought a claim of unfair dismissal in the employment tribunal.

The employment tribunal found that dismissal was within the range of reasonable responses. Although the obligation on R to disclose this particular information was not expressly set out in her contract of employment, the tribunal considered it ‘obvious’ that failing to disclose it was misconduct. R appealed unsuccessfully to the EAT against the failure of her unfair dismissal claim. On her further appeal, the Court of Appeal held, by a majority, that the tribunal had reached the correct decision. Lady Justice Black took the view that R’s association with S did pose a risk to the children and that R should have realised that she had a duty to inform the school of it. Black LJ considered it relevant that the disciplinary rules applicable to R stated that a failure to report any matter which it was a duty to report could give rise to action by the school. R appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal. Lord Wilson, giving the leading judgment, noted that R was under a contractual obligation to assist the school’s governing body in discharging its duty to safeguard the pupils, and the question was whether her relationship with S engaged the governing body’s safeguarding functions. Parliament has recognised in the 2006 Act and the 2009 Regulations that offenders can represent a danger to children not only directly, but also indirectly, by operating through those with whom the children associate. S was the subject of a serious, recent conviction and the basis of his sentence was that he represented a danger to children. As head teacher, R was likely to know important information about her pupils, including their whereabouts, their routines and their circumstances at home. She was also likely to be able to authorise visitors to enter the school premises. S’s relationship with R, therefore, created a potential risk to the children at the school, which required the assessment of the governors. In these circumstances, the employment tribunal was entitled to conclude that it was a reasonable response for the disciplinary panel to have concluded that R’s non-disclosure of her relationship with S not only amounted to a breach of duty but also merited her dismissal. R’s continuing refusal to accept that she had been in breach of her duty suggested a lack of insight which, it was reasonable to conclude, rendered it inappropriate for her to continue to run the school.

Lady Hale gave a concurring judgment, noting that the governors’ legitimate concern was that R’s failure to provide disclosure prevented them from having a full and frank discussion about how risks to the pupils might be avoided. Lady Hale went on to note that the case might have presented an opportunity for the Court to consider two points of law of general public importance, had it been presented differently: (1) whether a dismissal based on an employee’s conduct can ever be fair if that conduct is not in breach of the employee’s contract of employment; and (2) whether the approach laid down by the EAT in British Homes Stores Ltd v Burchell 1978 ICR 303 remains good law. Lady Hale noted that it is not difficult to think of arguments on either side of both questions, but did not express any view, as a result, we currently have no new guidance on these points but does flag the possibility of arguments in this area.

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