The Supreme Court recently upheld the fairness of the dismissal of a head teacher, for non-disclosure of a relationship with a convicted sex offender. Phil Allen looks at the lessons from the judgment.
The Supreme Court has delivered an important judgment in the case of a head teacher dismissed for not disclosing her relationship with a convicted sex offender. The case of Reilly v Sandwell MBC  UKSC 16 looked at the unfair dismissal test and whether dismissal was within the range of reasonable responses. The Court has decided that the school governors were able to reach the decision to dismiss and rejected the head’s arguments that doing so was unfair because her relationship with the offender was not one she was actually obliged to disclose.
Ms Reilly was a head teacher of a primary school. In that role she was under a contractual duty to assist the school’s governing body in discharging its legal safeguarding duties, and the disciplinary policy confirmed that failure to report a potential safeguarding issue was an example of misconduct. Ms Reilly had a close relationship with Mr Selwood. We are told that although they did not live together or have a sexual relationship, she sometimes stayed overnight and they had a joint bank account. He was arrested, charged and later convicted for making indecent images of children. Despite being present when the arrest occurred, Ms Reilly never informed the governing body about her relationship with Mr Selwood or his arrest/conviction. When the governing body found out, she was dismissed for failing to disclose her relationship with a convicted sex offender.
When she claimed unfair dismissal, the Employment Tribunal found that the employer genuinely believed that the non-disclosure amounted to misconduct and that there were reasonable grounds for the belief that for a head teacher to have failed to disclose such information to her governing body was a matter of misconduct (whether or not disclosure was expressly required by her contract). They also found that dismissal was within the range of reasonable responses (albeit that because of issues with the appeal the dismissal was procedurally unfair).
The Supreme Court (that is the UK’s highest Court) has confirmed that the Tribunal was able to reach that decision. The Court focussed on whether the employer acted reasonably in treating that reason as sufficient to dismiss the employee in accordance with equity and the substantial merits of the case. The lead judgment focuses on the importance of recognising that sexual offenders can represent a danger to children indirectly through those with whom they associate. The relationship of Mr Selwood with the head teacher represented a potential risk to the school’s children. As the head was supposed to be the eyes and ears of the governors, her non-disclosure represented a breach of duty which merited dismissal. In fact Ms Reilly had maintained that she was not obliged to disclose, and that continuing lack of insight also meant that it was reasonable for the employer to conclude that it was inappropriate for her to continue to run the school.
What does this mean for me?
This is a judgment which re-emphasises the test which applies when a Tribunal is asking whether a dismissal is fair, albeit in particularly difficult circumstances. If you consider that dismissal is correct, consider carefully why the misconduct identified is dismissible and what it is that makes that the appropriate sanction. As the Supreme Court has emphasised, it is not for them or any Tribunal to decide whether they also would have dismissed, it is whether the decision made was within the range of reasonable responses.
There are however some notable points made in the judgment about Ms Reilly’s non-disclosure. The Court says that had she disclosed her relationship to the school “it is highly unlikely that she would have been dismissed, still less that the Tribunal would have upheld any dismissal as fair”. The Court believes that promises from Ms Reilly about not giving him access to the School and ensuring that he did not have access to records, would have sufficed. So for those of you who deal with similar issues of safeguarding, whilst the judgment is broadly reassuring about the ability to dismiss for non-disclosure it does carry some warning about thinking through why dismissal is the right decision in other cases.
What is also illustrated by the Court’s rationale is the importance of documents and procedures when considering what amounts to misconduct and when it is dismissible. The Court’s judgment refers to the content of Ms Reilly’s job description and the school’s disciplinary provisions, when identifying the duties which applied to her and the importance placed upon safeguarding issues. Do ensure that wherever possible your documentation including job descriptions, contracts and disciplinary procedures, spells out things which are important to your organisation/business and which will be treated particularly seriously if not followed or (where appropriate) not disclosed to you.
The other notable element of this Supreme Court judgment is slightly more of a technical one, which requires no change to current approaches but which is something for which we might need to keep a watching brief. Lady Hale has made some rather cryptic comments which might lead to questions being raised about whether the current Burchell test, and the application of it, would necessarily be upheld if argued before the Supreme Court in future. She notes that it has been applied for 40 years and therefore currently remains correct, however her observation that she can think of arguments on either side for it (which this Court did not hear) might invite someone with an appropriate case to try to challenge it in the near future. Broadly the Burchell test does place a focus on procedure and the basis for a decision, rather than a Tribunal deciding whether it would itself have reached the same decision that the employer has done. Hopefully Lady Hale’s words do not foretell a potential future change to that approach and it is unlikely you will change a decision because of them, but they might just cause you to think again if you think that your decision to dismiss may be too harsh or might not be supported by the facts before you.