Failure to disclose relationship outside work justified dismissal

Reilly v Sandwell Metropolitan Borough Council

A school was entitled to summarily dismiss a head teacher for her failure to disclose a personal relationship with a sex offender outside of work.

Background

Ms Reilly was the head teacher of a primary school. Before being appointed, she’d begun and maintained a close personal relationship with Mr Selwood. Although he was arrested before she was appointed, and indeed Ms Reilly had been there at the time, she said nothing about the charges he faced. After her appointment, Mr Selwood was convicted of making indecent images of children. Ms Reilly knew of his conviction but didn’t disclose this to the school. She and Mr Selwood went on holiday and she was named on his insurance as an authorised driver of her vehicle. When the school discovered the conviction, it suspended Ms Reilly and called her to a disciplinary hearing to face charges of a serious breach of an implied term of her contract, which amounted to gross misconduct. Ms Reilly continued to deny that this relationship might put in danger children at the school or that she had any duty to disclose it. The school summarily dismissed Ms Reilly for gross misconduct. It considered that she should have been aware of the need to notify them and her failure to accept that she’d acted wrongfully meant that dismissal was the only appropriate sanction. Following an unsuccessful appeal, Ms Reilly brought an unfair dismissal claim, arguing that she was under no actual duty to disclose the relationship. A tribunal (upheld by the EAT and Court of Appeal) dismissed her claim. During the tribunal hearing Ms Reilly said she had sought advice from probation officers and the police about whether she should disclose these details and the advice was that this was not necessary. However, two of the named probation officers gave evidence to say they had never given this advice and it came to light that another probation officer had written to her and categorically told her that she needed to disclose it.

Supreme Court decision

The Supreme Court unanimously dismissed her appeal.

Ms Reilly was contractually obliged to assist the school’s governing body in discharging its duty to safeguard the pupils. The question was therefore whether her relationship with Mr Selwood engaged the governing body’s safeguarding functions.

Sex offenders can represent a danger to children not only directly, but also indirectly, by operating through those with whom the children associate. Mr Selwood clearly represented a danger to children and Ms Reilly’s relationship with him created a potential risk to the pupils; she held information about her pupils (including their whereabouts, their routines and their circumstances at home) and could authorise visitors to enter the school premises.

Mr Selwood’s relationship with Ms Reilly therefore created a potential risk to the children at the school, which required the assessment of the governors. As such, the tribunal was entitled to conclude that it was a reasonable response for the disciplinary panel to have concluded that Ms Reilly’s non-disclosure of her relationship with Mr Selwood not only amounted to a breach of duty but also merited her dismissal. Additionally, her continuing refusal to accept that she had done anything wrong suggested a lack of insight which, it was reasonable to conclude, rendered it inappropriate for her to continue in her role as head teacher.

The President of the Supreme Court, Lady Hale, had some interesting things to say about the continuing relevance of the well-known Burchell test for misconduct dismissals and whether it continues to be good law.

Link to judgment: http://www.bailii.org/uk/cases/UKSC/2018/16.html

Comment

The irony of this case is that if Ms Reilly had disclosed her relationship then it was very unlikely that she would have lost her job as the governors could have discussed the situation and put in place appropriate measures. Her continued stance that she was under no duty to do reveal the relationship or that it posed a problem called into question her judgment as a head teacher which opened the way for the school to dismiss her.