Safeguarding – Headteacher’s duty of disclosure

On 14 March 2018, the Supreme Court upheld the dismissal of head teacher, for failing to disclose a relationship with person convicted of a sexual offence.

In Reilly v Sandwell MBC [2018]. The Appellant, Ms Reilly, the former head teacher of a primary school, was in a relationship with a man convicted of making indecent images of children by downloading them onto his computer. She failed to notify her employer of her relationship and his conviction. The Local Authority became aware of the conviction and commenced disciplinary proceedings. Ms Reilly was dismissed for gross misconduct for failing to disclose the conviction/relationship. The Local Authority was concerned that she had failed to accept that the relationship might pose a risk to pupils and the school. The Appellant brought a claim for unfair dismissal and sex discrimination in the Employment Tribunal. She argued that she was not under a duty to disclose the circumstances of the conviction of the person with whom she was in a relationship.

The Employment Tribunal decision

The Employment Tribunal dismissed the claim having decided that there was a duty to disclose in these circumstances. It was also concerned about Ms Reilly’s continued refusal to accept that she had done anything wrong or to recognise the potential safeguarding issues arising as a result of the relationship. The Tribunal held that the dismissal was within the band of reasonable responses available to her employer, although it decided that the conduct of her internal appeal rendered the dismissal procedurally unfair.

Employment Appeal Tribunal and Court of Appeal decisions

Ms O’Reilly’s appeals to the Employment Appeal Tribunal and the Court of Appeal were unsuccessful.

The Supreme Court unanimously dismissed the appeal. The Court re-affirmed the test in British Home Stores Ltd v Burchell [1980] that the Tribunal was required to inquire whether the dismissal was within a range of reasonable responses to the conduct complained of and whether that conclusion had been made following a reasonable investigation. The decision might have been different if it had been a less senior member of staff who did not have the same managerial responsibilities in respect of safeguarding at the school. The application of the “reasonable response” test afforded the employer a wide discretion and a degree of latitude when reaching a decision to dismiss an employee.

In light of the Tribunal’s conclusions, it was then unnecessary for the Court to consider whether a dismissal could be fair if the alleged misconduct, was not itself, a breach of contract. Lady Hale pointed out that if the case had been argued differently it might have presented an opportunity for the Supreme Court to consider two points of law of general public importance which have not been raised at this level before, namely:

(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

(2) Whether the approach laid down by the Employment Appeal Tribunal in British Homes Stores Ltd v Burchell is correct.

However, in light of the conclusion that the conduct had breached her contract, those points were not argued and the test in BHS v Burchell remains good law.

Phil Storey
Bailey Wright & Co

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