A v B and another (Court of Appeal)

The CA confirmed that a head teacher had been fairly dismissed for gross misconduct where she had failed to notify her school's governing body of her (non-sexual) relationship with a convicted sex offender.

In light of her (and the school's) clear safeguarding responsibilities, the court considered that she should have: (1) realised this association may have posed a risk to children; and (2) notified the school so that appropriate protective measures could be implemented. It is important to note that the dismissal was for the Claimant's failure to disclose, rather than because the school had concluded that the relationship made her position untenable.

Although the CA acknowledged that the precise circumstances of individual cases would always determine whether a dismissal for association with sex offenders could justify termination on the grounds of misconduct, the majority appeared to confer the employer with relatively wide discretion in this area. The role of the employee, their influence over others and any exposure they have to children or vulnerable individuals will be taken into account.

This decision arguably strengthens the position of employers who have similar concerns about employees and may be considering dismissal. The dismissal is likely to be fair if the employer is able to show that continued employment presented a real risk to vulnerable individuals and follows a fair disciplinary procedure. Relevant employment policies and contracts should also be reviewed to ensure that, as far as is possible, employees are under a duty to report all known / suspected associations with sex offences or offenders.