In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court has upheld the Judgment of an employment tribunal that the decision to dismiss a headteacher who did not tell her school about her close friend’s conviction for a child sex offence was fair.

Ms Reilly was a primary school headteacher. She had a long term close relationship with Mr Selwood, who was convicted of making indecent images of children by downloading the images. She did not cohabit with Mr Selwood, nor was she in a romantic or sexual relationship with him, but she jointly owned a house with him. Following his conviction, she decided that she was not under a duty to disclose her relationship to the school. Later the school governors found out about the conviction. Ms Reilly was suspended, subjected to a disciplinary procedure and summarily dismissed. This was on the basis that she had committed gross misconduct by breaching an implied term of her employment contract under which she had a duty to disclose such a relationship. 

Ms Reilly brought an unfair dismissal claim in the employment tribunal. The employment tribunal found that the reason for dismissal was not unfair although there were serious procedural errors in the appeal. However, the tribunal found that Ms Reilly would have been very likely to have been dismissed even if the procedure had been fair and that she contributed to her dismissal by not disclosing the relationship. Her compensation was therefore reduced by 100%.

This decision was upheld by the EAT and the Court of Appeal. The Supreme Court also agreed. Although Ms Reilly was not under a statutory duty to disclose because she was not living in the same household as Mr Selwood, she had breached her employment contract by failing to disclose information which was relevant to her safeguarding duties.

It was found that the headteacher was under a contractual obligation to advise, assist and inform the governing body in its safeguarding responsibilities and to be accountable to the governing body for the maintenance of pupil safety. It was also relevant that the disciplinary rules in the contract of employment identified as misconduct a failure to report something which it was her duty to report. The Supreme Court held that her relationship posed a potential – 4 – risk to children and it was not for the headteacher unilaterally to assess the risks to the children in the school. She should have disclosed the facts in order that the governors could assess the risk and decide on the best steps to take in the circumstances. The decision to dismiss was therefore within the band of reasonable responses. It was relevant that she did not show any insight into her duty to report this matter during the disciplinary process. The school was therefore reasonable in deciding it was inappropriate for her to continue in her role as headteacher.

It is interesting to note that the Supreme Court in this judgment made some comments which question the application of the Burchell test to the question of whether a dismissal was reasonable or unreasonable. This test, which hails from British Home Stores v Burchell (1978) IRLR 379, states that a dismissal for misconduct will only be fair if at the time of the dismissal the employer believed the employee to be guilty of misconduct, and it had reasonable grounds for believing in that guilt. The employer must have carried out as much investigation as is reasonable in the circumstances at the time of forming its belief. The judgment explicitly states, however, that the law remains as the point was not argued in this case.

Although not raised in the tribunal, the Supreme Court noted that the Childcare (Disqualification) Regulations 2009 (the Regulations) indicate that there can be an indirect risk to children where childcare providers associate with someone who has committed offences against children. The Regulations require certain childcare providers and those who manage childcare providers to be registered in order to provide childcare. Those who have committed sexual offences and offences against children are disqualified from working with children in an early years setting or out of normal school hours in a later years setting (below the age of 8). Headteachers who manage such childcare provision must comply with the Regulations. Disqualification by association occurs when someone working in a relevant setting lives in the same household with someone who is disqualified. Staff who are disqualified by association have a duty to disclose this information. It is possible to apply to OFSTED to waive disqualification.

This case raises difficult questions for those working with children. It suggests that particularly those in senior positions should err on the side of caution and disclose relationships with convicted sex offenders even where they are not under a statutory duty to do so. The Supreme Court commented that Ms Reilly would have been unlikely to be dismissed if she had disclosed her relationship. However such a disclosure is likely to trigger a very difficult assessment for the governing body. Governors and trustees should give careful thought to the risks involved before suspending and/or dismissing the employee. They should take into account in their decisionmaking the nature of the risk, the attitude of the employee and their preparedness to work with the governors to reduce any risk to children.