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Head teacher’s failure to disclose relationship was gross misconduct

This week (in Reilly v Sandwell Metropolitan Borough Council), the Supreme Court, has found that a head teacher’s failure to disclose her relationship with a man who had been convicted of making indecent images of children justified her dismissal.

The Claimant had a close relationship with the man, was aware of his arrest (and the reasons for this) and continued to have a relationship with him after his conviction.  She sought advice from various people about whether she was under a duty to report this (including governors of other schools, a police officer and the Criminal Records Bureau) and came to the conclusion that it was not necessary.  On discovery of this relationship, the school dismissed the Claimant for gross misconduct on the basis that her failure to disclose this was a serious breach of her duties to assist the school in safeguarding its pupils.

The Employment Tribunal dismissed the Claimant’s unfair dismissal claim.  It held that although the obligation to disclose was not expressly in the Claimant’s contract, it was obvious that failing to disclose this was misconduct.  Ms Reilly lost her appeals to the Employment Appeal Tribunal, Court of Appeal and the Supreme Court.

The Employment Tribunal dismissed the Claimant’s unfair dismissal claim.

The Supreme Court found:

  • Ms Reilly’s had made wide-ranging inquiries into the circumstances which triggered the duty, which showed that she even she recognised how near her case was to the border-line.
  • The governors were the objective decision makers and they decided the case fell on the side of the line which required disclosure. The man was the subject of a serious, recent conviction. The basis of his sentence was that he represented a danger to children. His relationship with the head of the school created, at the very least, a potential risk to the children. It was for the governors, not Ms Reilly, to assess the risk.
  • If she had disclosed the relationship, it is highly unlikely that she would have been dismissed or that it would have been fair to dismiss her.
  • The governors would probably have made Ms Reilly promise not to allow the man to enter the school premises and promise that outside the school she would not leave information about pupils in places potentially accessible to him.
  • The tribunal was entitled to conclude that it was a reasonable response for the governors to find that Ms Reilly’s non-disclosure not only amounted to a breach of duty but also merited her dismissal.
  • Her refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, it was reasonable for the tribunal to conclude, made it inappropriate for her to continue to run the school.

This case is a reminder to employees that concealing information such as this may well be more of an issue than the underlying facts that were being concealed.  Had the employee in this case approached her school’s governors, as oppose to everyone else, it is likely she would have retained her role.

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