29 Mar 2018

The Supreme Court rarely hears employment law cases so they are worth reporting when they happen. In Reilly v Sandwell Metropolitan Borough Council (previously known as A v B and another) [2018] UKSC 16, the Supreme Court had to consider whether a school had unfairly dismissed a head teacher who had not disclosed a relationship with a person convicted of making indecent images of children.

Facts

Ms Reilly was the head teacher of a primary school. She had a close relationship with Mr Selwood, who had been convicted of making indecent images of children by downloading them onto his computer; although they were not partners and did not live together, they jointly owned a house, had a joint bank account to pay the mortgage and had been on holiday together. Mr Selwood was given a three year community order, and a sexual offences prevention order prohibited him from having unsupervised contact with children. He also had to take part in a sex offender programme. Ms Reilly failed to reveal this relationship to the school governors. When they became aware of the relationship and the conviction, Ms Reilly was suspended and invited to a disciplinary hearing. She had qualified as a teacher in 1987 and had an exemplary disciplinary record.

It was alleged that Ms Reilly had committed a serious breach of an implied term in her contract of employment (ie to disclose relationships with convicted sex offenders) and this amounted to gross misconduct. The school was also concerned that she had refused to accept that her relationship with Mr Selwood might put pupils at risk. The school dismissed Ms Reilly without notice. Her appeal against dismissal was unsuccessful and she brought a claim for unfair dismissal, arguing that she was under no duty to disclose the relationship.

Employment tribunal decision

The employment tribunal (ET) found that dismissal was within the range of reasonable responses open to the employer and was not unfair. The hearing of her appeal had been so unsatisfactory as to render her dismissal procedurally unfair but she had contributed to her dismissal by blameworthy conduct and the ET assessed her contribution at 100%. Ms Reilly appealed.

Employment Appeal Tribunal decision

The EAT also found that the dismissal was not unfair and Ms Reilly appealed again.

Court of Appeal decision

Ms Reilly's appeal to the Court of Appeal did not succeed and she appealed again.

Supreme Court decision

The Supreme Court also dismissed Ms Reilly's appeal. It found that Ms Reilly had been dismissed for misconduct, namely her failure to disclose her relationship with Mr Selwood, and the case therefore turned on whether her dismissal was within the range of reasonable responses and whether a reasonable investigation had taken place.

The Supreme Court found that Ms Reilly was under a contractual duty to assist the governors in discharging their duty to exercise their functions with a view to safeguarding the pupils of the school. Her contract of employment gave the failure to report something that it was her duty to report as being an example of conduct that could lead to disciplinary action. Mr Selwood represented a danger to children and his relationship with Ms Reilly created a potential risk to pupils, which needed to be assessed by the governors; it was not for Ms Reilly to conduct that assessment.

The ET had been right to find that it was reasonable for the governors to have concluded that Ms Reilly's non-disclosure was a breach of duty that merited her dismissal. Her refusal to accept that she had breached her duty suggested a continuing lack of insight that made it inappropriate for her to continue to run the school.

Comment

It is interesting to note that all four of the courts that heard this case decided in favour of the employer – although there was no evidence that any pupil had actually been at risk, it was sufficient that Ms Reilly had failed to comply with an implied duty to disclose relevant information and had failed to admit that she had made an error of judgement. However, the decision does not make it clear when such a duty arises: does it only apply when an associate of an employee is convicted of an offence (rather than being questioned or charged); does it only apply to sex offences; does it only apply to employees in senior positions; how close does the relationship have to be; and does it only apply where the employer has a duty to safeguard vulnerable people? The decision underlines the difficult issues employers have to deal with in this kind of case.