A recent Supreme Court decision has highlighted the sensitive interplay between criminal law and safeguarding in the education sector.
In the case of Reilly v Sandwell Metropolitan Borough Council  UKSC16, a head teacher's dismissal was upheld, not because she had been personally subject to any criminal investigation, but because of her association with a person convicted of possessing indecent images of children.
The head teacher, 'R', had worked for a primary school maintained by Sandwell Metropolitan Borough Council (Sandwell) since 2009 and had an exemplary disciplinary record. In her personal life, R had a close but non-romantic relationship with a man, 'S', and although they did not live together, she sometimes stayed at their jointly owned property.
One morning, prior to her appointment as head teacher, R witnessed the police search the property and arrest S on suspicion of having downloaded indecent images of children online. S was subsequently convicted in February 2010.
When the school became aware of S’s conviction they concluded that R's failure to disclose the relationship amounted to a serious breach of an implied term of her contract of employment. The school decided that this breach amounted to gross misconduct and R was summarily dismissed.
R claimed she was unfairly dismissed on the basis that she had no duty to disclose her association with S but her dismissal was upheld by the Employment Tribunal. Her further appeals to the Employment Appeal Tribunal, Court of Appeal and Supreme Court were also unsuccessful.
Supreme Court decision
The Supreme Court considered R’s assertion that she had no duty to disclose her relationship in the context of her job description which required her to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” and “be accountable to the Governing Body” for the maintenance of pupil safety. On this basis it was decided that the Employment Tribunal was entitled to conclude that the school's decision to dismiss R fell within a range of reasonable responses available to it.
The Supreme Court felt that R’s failure to recognise that she had breached her duties indicated “a continuing lack of insight which... rendered it inappropriate for her to continue to run the school". It was held that it was not for R to assess the potential risk that arose as a result of her relationship with S, but rather it should have been assessed by the governors.
The Supreme Court also considered the Childcare (Disqualification) Regulations 2009 (the 2009 Regulations). At the time, under the 2009 Regulations living with a person who would be disqualified from working as a teacher by virtue of being cautioned or convicted of a criminal offence, would result in a teacher being disqualified by association. Although R was not strictly living with S, the Supreme Court stated that Parliament’s intention in respect of the 2009 Regulations was relevant. There were extensive obligations to disclose relevant information because "Parliament has itself recognised that sexual offenders towards children can represent a danger to children not only directly but indirectly by operating through those with whom they associate".
The 2009 Regulations were replaced by The Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018 on 31 August 2018, and the disqualification by association provisions now only apply in domestic settings, not in schools. This is a significant change, and it means that schools must no longer ask about the cautions or convictions or someone living or working in a teacher's household (although note that other provisions may apply where the third party resides on school premises). It should be noted that the disqualification provisions under the Childcare Act 2006 remain in force.
However, notwithstanding this change, schools should still consider and determine whether there are safeguarding concerns in respect of a teacher and/or their associations, particularly if the teacher is a senior manager. Schools should also follow the safer recruitment procedures set out in Keeping Children Safe in Education 2018 (KCSIE) and ensure that safeguarding procedures comply with KCSIE.
As a result, schools should inform staff of the change (if this has not already been done), ensure that safeguarding policies are updated and consider any historic data concerning the living arrangements of staff, and destroy information that is no longer required. Schools should continue to promote a culture of openness so that staff feel able to talk about any relationships (both inside and outside of the school) which may have safeguarding implications for children of the school, in order to seek to minimise any potential risk to pupil safety.
It should also be noted that, in this case, R was seeking to argue that her dismissal was unfair in the Employment Tribunal and it did not focus solely on the question of disqualification under the 2009 Regulations. Indeed the 2009 Regulations did not disqualify R from being a head teacher, as referred to earlier, the Supreme Court considered them to the extent that they demonstrated a Parliamentary recognition that sex offenders could represent a danger to children directly and indirectly, and that R's relationship with S created a potential risk to children. The change in law would not necessarily change this position and, in any event, the Supreme Court also considered R’s seniority and her failure to acknowledge that she had breached her contractual duty to assist the governors of the school in its safeguarding obligations. Therefore, despite the change in law, a future case could be similarly decided in the context of whether a dismissal was fair and within the range of reasonable responses.