Supreme Court Decision on Failure to Disclose Relationship
The Supreme Court has decided on the appeal of a former head teacher of a primary school who was dismissed for a failure to disclose her relationship with a convicted child sex offender. This decision highlights the importance of the timing of disclosure of information so that the risks can be properly considered and appropriate action taken.
The facts of the case are summarised as follows:
- Ms Reilly (R) qualified as a teacher in 1987.
- R met Mr Selwood (S) in 1998 and developed a close friendship with him. The pair bought an investment property together and S lived there. R occasionally stayed at the property.
- In 2009 S was arrested at the property on suspicion of having downloaded indecent images of children. R was present at the property at the time of the arrest.
- R was appointed to the role of head teacher at Sandwell (a primary school) in September 2009. At no time during the application process did R disclose her relationship with S and the investigation in relation to the allegations against him, despite remaining a close friend of S.
- In February 2010 S was convicted of downloading indecent images of children. R was immediately aware of S conviction but chose not to disclose this to Sandwell. R made this decision despite raising the question of whether she should disclose the information with a number of people including a police officer, probation officers and officers of other local authorities.
- In June 2010 Sandwell became aware of S conviction and the close relationship between R and S. Sandwell took disciplinary action against R.
- At the disciplinary hearing R refused to acknowledge the risk that her friendship could pose to pupils at the school (especially given her position as head teacher) and that her failure to disclose her relationship with S, a convicted child sex offender, had been wrong.
- R’s job description included a requirement to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” and to “be accountable to the Governing Body for the maintenance of the safety of all pupils”. The disciplinary provisions in R’s contract of employment identified a failure to report something which was R’s duty to report as being an example of conduct which might lead to disciplinary action. R accepted that she was under a contractual duty to assist the governing body in discharging its duty to exercise its functions with a view to safeguarding the pupils.
- Sandwell summarily dismissed R for a serious breach of an implied term of her contract of employment, which amounted to gross misconduct.
- R’s appeal against Sandwell’s decision to dismiss was not upheld and R made a claim to the Employment Tribunal for unfair dismissal.
- Sandwell argued that R reporting the connection with S would have enabled a serious discussion to take place about how potential risks might be avoided.
The tribunal found:
- a) that the reason for Sandwell’s dismissal of R’s was that she had failed to disclose her relationship with a convicted sex offender;
- b) that Sandwell genuinely believed that the non-disclosure amounted to misconduct;
- c) that there were reasonable grounds for Sandwell’s belief in that it was “obvious that for a head teacher to have failed to disclose such information to her governing body whether it is expressed in her contract of employment or not is a matter of misconduct”; and
- d) that, notwithstanding R’s exemplary disciplinary record but in the light, among other things, of her continuing refusal to accept that her non-disclosure had been wrong, her dismissal had been within the range of reasonable responses open to Sandwell.
The dismissal was therefore not unfair.
R first appealed to the EAT, then to the Court of Appeal who both upheld the Employment Tribunal’s decision.
R appealed to the Supreme Court who dismissed the appeal and held that the tribunal was entitled to conclude that it was a reasonable response for Sandwell to have concluded that R’s non-disclosure not only amounted to a breach of duty but also merited her dismissal. For R’s refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, as it was reasonable to conclude, rendered it inappropriate for her to continue to run the school. The Supreme Court confirmed that R was in breach of her contract of employment by not informing her employers of her connection with S. R had a duty to “advise, assist and inform” the Governing Body in the fulfilment of its safeguarding responsibilities towards the school’s pupils. Those who are guilty of sexual offences against children pose a risk to the safety of other children both directly and indirectly.
In terms of the decision made by the disciplinary panel it was stressed that the decision to dismiss just has to be within the range of reasonable responses. It does not have to be the only choice available to the decision makers in order for it to be a fair decision; albeit there are other factors such as the investigation element that must be followed.
The Supreme Court also commented that there is an argument to be had as to whether the approach to be taken by a tribunal to an employer’s decisions, both as to the facts and as to whether the decision to dismiss was reasonable or unreasonable, first laid down by the EAT in British Homes Stores Ltd v Burchell  ICR 303, is correct in certain circumstances.
Under the Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 staff engaged in the provision of certain categories of childcare must disclose whether they live with anyone holding a relevant criminal conviction. It is important to note that in this case the role of safeguarding was a fundamental consideration. In essence the decision was largely upheld because, as a head teacher with safeguarding responsibilities, R should have realised that she had an obligation to inform Sandwell so that any appropriate protective steps could be taken. R’s failure to do so showed a clear lack of understanding of the importance of safeguarding and how her role was vital to this. R’s handling of the issue was the misconduct, rather than her relationship with S.