A primary school was within its rights to dismiss a headteacher who failed to disclose her close relationship with a sex offender, the Supreme Court has ruled on appeal.
In a decision on Reilly v Sandwell Metropolitan Borough Council, heard on 12 December and published on 14 March, the court heard that the appellant, Ms Reilly, had a long-term relationship with Mr Selwood.
Although they were not in a sexual or romantic relationship, they owned a house together that Selwood lived in, and Reilly regularly visited and stayed overnight.
Five months after Reilly began her role as headteacher in a primary school, Selwood was convicted of making indecent images of children by downloading them onto his computer. Although Reilly was immediately aware of the conviction, she did not disclose the relationship to the school governors.
Later, the local authority learned of the relationship between the pair and of Selwood’s conviction. Reilly was immediately suspended and invited to a disciplinary hearing.
The disciplinary panel upheld the allegation against her – that she had committed a serious breach of an implied term of her contract of employment, which amounted to gross misconduct.
In addition, the panel was particularly concerned by Reilly’s continued refusal to acknowledge that her relationship with Selwood posed a potential risk to pupils at the school and that she should have disclosed the relationship. She was consequently dismissed.
Reilly brought a claim to the employment tribunal alleging unfair dismissal and sex discrimination.
She argued that there had been no obligation for her to disclose the relationship. The tribunal held that the decision had not been unfair. Reilly subsequently took her case to the Employment Appeal Tribunal and Court of Appeal, both of which found the dismissal to be fair.
The Supreme Court also agreed with the previous decisions and dismissed the case. In his judgment, Lord Wilson said dismissal was a reasonable response for the panel to have reached having concluded that Reilly’s non-disclosure amounted to a breach of duty.
“For her refusal to accept that she had been in breach of duty suggested a continuing lack of insight, which, as it was reasonable to conclude, rendered it inappropriate for her to continue to run the school,” added Wilson.
Lady Hale, president of the Supreme Court, agreed with Wilson’s judgment. She said Reilly had a duty to “advise, assist and inform” the school’s governing body in fulfilment of its safeguarding duties, and that any person convicted of sexual offences against children posed a risk, whether directly or indirectly.
“There are many ways in which Mr Selwood, should he choose to do so, might have used his friendship with Ms Reilly to gain access to the school’s pupils: not only through being allowed to visit the school but also through finding out information about the pupils”, she added.
“Reporting the connection would have enabled a serious discussion to take place about how those risks might be avoided. There is no reason to think that it would have been a resigning matter. Issues could have been identified and solutions found. It is the absence of that full and frank disclosure and discussion that was the cause for serious concern.”
Hale did, however, note that the case was decided without considering whether conduct that is not contractual misconduct can in fact be “some other substantial reason of a kind such as to justify the dismissal” within the meaning of section 98(1)(2) of the Employment Rights Act 1998.
James English, senior solicitor at Hempsons, told People Management that the decision “emphasises that an employer is entitled to dismiss an employee for a breach of the implied duty of trust and confidence where the alleged misconduct is not expressly dealt with in the contract of employment.
“However, employers should be careful not to seize on ‘breach of trust and confidence’ as a ground for dismissal as the first port of call, and should generally consider whether the reason falls within another established category. Not all will be as obvious as the failings in this case.”
Kate Brearley, partner at Stephenson Harwood, said it was helpful in this case that Reilly’s job description set out duties related to assisting the governing body in terms of pupils’ safety, and her contract outlined disciplinary provisions for failing to report.
“Employers should take note that if there are items that are particularly important to an employee’s role, it will help the employer if these are included in key documentation,” said Brearley.