05 Aug 2016

In A v B and another [2016] EWCA Civ 766, the Court of Appeal looked at whether a school acted reasonably in dismissing a head teacher for misconduct, on the basis that she did not disclose her relationship with a person convicted of making indecent images of children. 

Facts

The teacher was appointed as the head of a primary school in 2009, having successfully taught in other schools for 23 years. She had been in a relationship with someone since 1998. In February 2010, he was convicted of making indecent images of children and was made subject to a court order forbidding him from having unsupervised access to children under 18. 

The head teacher sought advice from various sources, including a police officer, a probation officer, the CRB and governors at other schools about whether she ought to disclose information about her relationship to the school. She understood that it was not necessary so did not make the disclosure. The school subsequently became aware of her relationship and of the conviction and the head teacher was suspended. After an investigation, she was charged with gross misconduct and dismissed. The reasons given for her dismissal were that:

  • The role of a head teacher is to assist the governing body in discharging its functions, one of which is safeguarding and child protection. Her failure to disclose her relationship put the safety of children at risk
  • If the head had accepted her error, the school might have considered an alternative sanction to dismissal, particularly in light of her unblemished disciplinary record. However, her "failure to recant" led the school and governing body to believe that dismissal was the only appropriate sanction.

Following her dismissal, the head teacher brought claims for unfair dismissal and sex discrimination.

Employment tribunal and EAT decisions

The head teacher was unsuccessful in the ET and at the EAT so appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal decided in favour of the school. The majority view of the Court was that the teacher’s relationship did pose a risk to the children at the school and she had a duty to inform the school of it so that steps could be taken to protect them. Given her position as a head teacher with safeguarding responsibilities, she should have realised this herself and reflected carefully on her situation. It was also relevant that the disciplinary rules applicable to her stated that a failure to report any matter that it was a duty to report was an example of conduct that could give rise to action by the school. 

The school did not spell out exactly what the risk to children actually was but Black LJ said that it did not need to and it was not difficult to see that the head’s partner posed more than a "general" risk to children. For example, he might have attended a school function or come to the school to meet her. While it was true that the head might have prevented situations like this arising, that was not relevant to the question of whether she had an obligation to disclose the information. Disclosure was necessary so that the governing body could consider what protective steps were required in light of it. 

Comment

The Court of Appeal made clear that dismissal in these circumstances in not inevitable and that the head teacher’s dismissal in this case was specifically for her failure to disclose the information about her partner and then her subsequent failure to admit that she had made an error of judgment. This decision does not necessarily make it clear, however, when that duty arises and when a teacher might be justified in not disclosing this type of information. This may lead teachers to disclose information in circumstances where they were not in fact obliged to, and the decision underlines the very difficult questions employers need to grapple with in this kind of case, when safeguarding children and protecting the reputation of the employer will always be vital.