The Court of Appeal recently upheld a tribunal's decision that a head teacher who had not disclosed her friendship with a convicted sex offender to her employer had been fairly dismissed for gross misconduct.

The Court's decision does not sit easily either with the legislative disclosure requirements applicable to those working with young children or with case law dealing with teachers' disclosure obligations. The decision confirms that the careers of teachers who fail to disclose certain relationships can be at risk, but fails to provide much needed clarity over the threshold for such disclosures.

The facts

In the case of A v B and another [2016] EWCA Civ 766, the claimant became head teacher of a primary school in 2009 having taught elsewhere for 23 years. She had an unblemished disciplinary record.

The claimant had formed a friendship with an individual, 'IS', in 1998 and, while they did not have a romantic relationship, they had a close friendship, went on holiday together and had invested in a house together in which IS lived.

In 2010, IS was convicted of making indecent images of children and the claimant sought advice from various sources, including a police officer, a probation officer, the Disclosure and Barring Service and the governors of another school with regard to whether or not she had an obligation to disclose her relationship with IS following his conviction. Having sought such advice, she understood that she was under no obligation to disclose the relationship.

When the school became aware of the claimant's relationship with IS through another source, it suspended her and, following an investigation, dismissed her for gross misconduct on the grounds that:

(a) her failure to disclose her relationship with IS put the safety of children at risk; and
(b) she did not recognise her error in failing to disclose the relationship.

The legal framework

Under the Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 staff engaged in the provision of certain categories of childcare must disclose whether they live with anyone holding a relevant criminal conviction.

These regulations apply to those providing care (including education and supervision during school hours) to children up to reception age ('early years') and to those providing care (excluding education and supervision during school hours) to children above reception age who have not yet attained the age of 8. Many primary schools will be caught by these regulations, but it is not by any means the case that all staff employed at such schools would be required to make such disclosures.

In 2014 the Employment Appeal Tribunal (EAT) considered teachers' disclosure obligations in the case of The Basildon Academies v Amadi UKEAT/0343/14. The case concerned a teacher who was engaged part-time at two separate schools. Mr Amadi was accused of sexual misconduct with a pupil in the course of one employment and did not disclose this safeguarding allegation to his other employer, Basildon Academies. When Basildon became aware of the accusation, it dismissed Mr Amadi for gross misconduct on the grounds of his failure to disclose the allegation.

The EAT in this case found that Mr Amadi had been unfairly dismissed as, in the absence of a contractual duty to disclose allegations, he was under no duty to disclose this information to his other employer.

The decision in A v B

The Court of Appeal concluded that the claimant had been fairly dismissed, with the exception of Elias LJ who dissented.

Notwithstanding the fact that the claimant had neither a statutory nor a contractual duty of any kind to disclose a relationship with IS, the Court of Appeal concluded that:

  • the claimant's relationship did represent a risk to children at the school. The school had in fact never articulated the nature of its safeguarding concern, but Black LJ concluded that "it was not difficult to see that IS posed more than a general risk to children".
  • notwithstanding the fact that the Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 did not apply in this case, they were nonetheless relevant as they demonstrated the need to assess the risk of contact with offenders.
  • it was not for the claimant to decide whether or not to disclose the relationship with IS.

The Court of Appeal consequently held that the Employment Tribunal was entitled to find the School's dismissal for gross misconduct had been fair.

Elias EJ in contrast concluded that he could see no evidence of an enhanced safeguarding risk arising from the relationship between the claimant and IS and noted that the nature of this risk was something the claimant's employer had failed to articulate or identify. He expressed concern over the concept that a mere association with an offender could create a presumption of an enhanced risk.

Conclusion

The Court of Appeal's decision creates substantial ambiguity over the circumstances in which teachers are obliged to disclose information about their personal relationships. Notwithstanding the fact that there was no express duty, either under contract or statute, for the claimant to disclose her relationship with IS, her dismissal for gross misconduct was found to be fair in circumstances where the immediate safeguarding risk was not articulated by her employer.