Can you lawfully be dismissed for failing to disclose information about a personal relationship to your employer?
Yes, says the Court of Appeal in A v B and another.
In 1998, A formed a friendship with IS (but they were not romantically linked). They went on holiday together and bought a house for investment purposes. IS lived in the house but A did not live with IS.
In 2009 A was appointed headteacher of a primary school.
In 2010, IS was convicted of making indecent images of children and was subject to an order not to have unsupervised contact with children under 18.
After seeking advice from professionals, including a police officer and governors from other schools, the headteacher decided not to disclose her relationship with IS.
The school became aware of A’s relationship with IS and his conviction. After a period of suspension and subsequent investigation, A was disciplined and dismissed for gross misconduct.
A’s claim for unfair dismissal and sex discrimination in the employment tribunal failed (whilst the Tribunal found a technical breach in the appeal process, the Tribunal decided since the headteacher contributed to her dismissal she should receive no compensation). A’s subsequent appeal to the Employment Appeal Tribunal failed.
In July 2016, A’s appeal to the Court of Appeal was dismissed. The Court of Appeal concluded that A’s association with IS should have been disclosed to the school for the school to assess for itself the risks in A’s relationship with IS from a safeguarding perspective.
Whilst the facts of this case obviously concern specific safeguarding issues in an education setting, they illustrate an important general point for employees and employers. The concern for employees is when the disclosure obligation arises and in what situations the obligation does not arise. The question of when such a disclosure should occur and on what grounds it would be permissible not to disclose similar information was not addressed by the Tribunal or Court of Appeal in this case. This may lead to employees disclosing matters that they were not obliged to disclose but still facing the consequences from their employer, nonetheless.
For employers, the above case is a useful reminder for when situations occur outside of the workplace, which can have an impact on an employee’s continuing employment. The above illustrates that there may be facts that could amount to a fair dismissal but employers are still required to follow a fair process by investigating the matter before arriving at a decision.