16 March 2018

In the case of Reilly v Sandwell Metropolitan Borough Council the head teacher of a Primary School (the Claimant) was in a close relationship with a third party, S.

Whilst it was a close relationship, the relationship was not sexual and the Claimant did not live with S. Nevertheless, the Claimant chose not to inform her employer that S had been found guilty of making indecent images of children. When the Respondent learned of the conviction and the Claimant’s close relationship with him, a disciplinary process ensued. One of the allegations was that the Claimant ought to have disclosed her relationship with a man convicted of sexual offences towards children, and that by failing to do so she had committed a serious breach of an implied term of her contract of employment, which amounted to gross misconduct.

The Claimant refused to accept that her relationship with S could pose a risk to pupils at the school. She maintained that she was not under any obligation to disclose the matter. The Respondent decided that she was guilty of gross misconduct and she was summarily dismissed.

Was the dismissal fair?

The Claimant raised a claim in the Employment Tribunal for unfair dismissal.  The Employment Tribunal decided that the dismissal was not unfair. The Claimant appealed and ultimately the matter came before the Supreme Court. The main issue was whether the Employment Tribunal had erred in finding that the Claimant had been under a duty to disclose the relationship.

The Claimant accepted, on the basis of her job description, that she had been under a contractual duty to assist the Respondent in discharging its duty to exercise its functions with a view to safeguarding the pupils. The disciplinary provisions within the contract of employment had identified a failure to report something which it had been her duty to report as being an example of conduct which might lead to disciplinary action.

The Employment Tribunal was therefore entitled to conclude that it had been a reasonable response to conclude that the Claimant’s failure to disclose her relationship was a breach of her duties and justified summary dismissal. The Claimant’s refusal to accept that she had been in breach of duty had suggested a continuing lack of insight which, as it had been reasonable to conclude, had rendered it inappropriate for her to continue to run the school.

The Court did question the orthodox approach to considering unfair dismissal whereby Tribunals do not decide whether they would have dismissed, but rather decide whether the decision to dismiss falls within the “range of reasonable responses”. Ultimately, the question is whether the decision to dismiss for the stated reason was reasonable in all the circumstances, taking account of the size of the employer, its resources, equity and the substantial merits of the case. While some questions were raised about the suitability of this test, the position was not challenged.

Going forward

This case is, therefore, a reminder of the requirement in unfair dismissal cases to ensure that firstly one of the 5 potentially fair reasons for dismissal are identified (which includes conduct). Secondly, a fair procedure must be undertaken in dismissing for that reason. That requires employers to carry out a reasonable investigation and comply with the rules of natural justice. The ACAS Code of Practice is a good place to start in considering what a fair procedure should include.

As ever when dealing with potential dismissals, a risk based approach should be applied.

Your BTO employment lawyers can work with you in managing the issues arising.

The full judgment can be found here.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.