Senior staff may have an implied contractual duty to disclose relationships with sex offenders to assist the governors in their safeguarding duties
The statutory duty to disclose
Under the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 (the Regulations), certain childcare providers and those who manage childcare providers are required to be registered in order to provide childcare. Those who have committed certain violent and sexual offences and offences against children are disqualified from working with children in certain settings (see below). Headteachers who manage such childcare provision must comply with the Regulations.
The Regulations apply to staff who provide any care for a child up to and including reception age. This includes education in nursery and reception classes and/or any supervised activity (such as breakfast clubs, lunchtime supervision and after school care provided by the school) both during and outside of school hours for children in the early years age range.
The Regulations also apply to staff who are employed to work in childcare provided by the school outside of school hours for children who are above reception age but who have not attained the age of 8. This does not include education or supervised activity for children above reception age during school hours (including extended school hours for co-curricular learning activities, such as the school’s choir or sports teams) but it does include before and after school childcare provision.
Disqualification by association occurs when someone working in a relevant setting lives in a household where someone who is disqualified lives or is employed. In such a case, there is a statutory duty to disclose although it is possible to apply to OFSTED to waive disqualification. The statutory guidance on the Regulations is available here.
In Reilly v Sandwell Metropolitan Borough Council,the Supreme Court has upheld the decision of an employment tribunal that the decision to dismiss a headteacher who did not tell the school about her close friend’s conviction for a child sex offence was fair.
Ms Reilly was a primary school headteacher with an exemplary disciplinary record and a long career in teaching. She had a close relationship with Mr Selwood, who was convicted of making indecent images of children. Ms Reilly 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 and occasionally stayed the night. Following his conviction, she decided that she was not under a duty to disclose her relationship to the school. She sought advice on this point from a number of probation officers. There was conflicting evidence as to the advice she had been given. 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 the 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, the courts held that the failure to disclose was a breach of her employment contract. The headteacher was under a contractual obligation to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” which included its safeguarding responsibilities and to “be accountable to the Governing Body for the maintenance of the safety of all pupils”. 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 potentially posed a danger 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. It was also relevant that she did not show any insight into her duty to report this matter during the disciplinary process. The school was reasonable in deciding it was inappropriate for her to continue in her role as headteacher.
The Supreme Court commented that, “had she disclosed her relationship to [governors], it is highly unlikely that [Ms Reilly] would have been dismissed, still less that the tribunal would have upheld any dismissal as fair. Far more likely would have been the extraction by the governors of promises by Ms Reilly that she would not allow Mr Selwood to enter the school premises and perhaps, for example, that outside the school she would not leave information about pupils, for example stored electronically, in places where he might be able to gain access to it.”
Chris Billington, Head of Education at Wrigleys comments: “Senior leaders in schools must 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. Such a disclosure will of course trigger a difficult assessment for schools. Governors and trustees should ensure that they consider (and carefully document as evidence of undertaking their safeguarding role) the particular circumstances. However, that does not mean schools should automatically look to suspend or dismiss as a knee-jerk reaction as this could be a breach of contract and/or unfair dismissal.”