A recent case has considered whether a school was entitled to summarily dismiss a head teacher for her failure to disclose a personal relationship with a convicted sex offender.

In the case of Reilly v Sandwell Metropolitan Borough Council Mrs Reilly was dismissed after she failed to disclose her friendship with a convicted sex offender, to the governing body of the school at which she was headmistress (the School). Mrs Reilly brought a claim for unfair dismissal to the Employment Tribunal which she lost, and her subsequent appeals at the Employment Appeals Tribunal, the Court of Appeal and the Supreme Court were all dismissed.

The Supreme Court held that the Employment Tribunal was entitled to conclude that it was a reasonable response for the School to have concluded that the employee’s non-disclosure amounted to breach of duty and merited her dismissal. As well as an implied term to disclose, the employee’s job description included a requirement to “advise, assist and inform the School in the fulfilment of its responsibilities” and to be accountable to the School for the safety of all pupils. The nature of the conviction represented a potential risk that required assessment, and her refusal to accept that she had been in breach of duty demonstrated a continued lack of insight, which it was reasonable to conclude made it inappropriate for her to continue to run the school.

The decision raises an interesting, albeit unaddressed, question as to when an employee’s obligation to disclose arises. Whilst the arrest occurred during the application process the conviction occurred after her appointment. The Supreme Court judgement itself does not address the issue of when the duty to disclose arose, although the judges did suggest that had the disclosure occurred earlier the School would have reacted in a measured and practical way by working with the employee to put safeguards in place. If that had been the case the school may have found it more difficult to find that the dismissal was within the band of reasonable responses. The lack of clarity on this point highlights the difficulty employees face in determining when the obligation to disclose arises, though the type and severity of the subject matter of the potential disclosure may guide this to some extent.

The decision is also of interest in so far as it lays a seed for the test in British Homes Stores Ltd v Burchell, which has long been regarded as the “classic formulation of the employer’s obligation in misconduct cases” to be challenged.  In his judgement, Lord Wilson questions whether the application of the Burchell test truly addresses section 98(4) of the Employment Rights Act 1996 (ERA 96), which asks “whether in the circumstances the employer acted reasonably or unreasonably in treating (the reason) as a sufficient reason for dismissing the employee”. He seems to suggest that the test covers sections 98(1)-(3) of the ERA 96, but does not go far enough in asking whether the reason is a sufficient reason for dismissing the employee to satisfy section 98(4) of the ERA 96. While Lady Hale does not comment on the test itself, she conceives that arguments could be made against its application in relation to the question of fairness. As this had not been raised as an argument before the court no proper consideration was given, but the judgement invites such an argument to be made in the future.

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This post was co-written by Emmy Clode, Associate, Norton Rose Fulbright LLP, London

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