The Supreme Court has upheld a tribunal decision that a school acted reasonably in dismissing a head teacher who did not disclose her relationship with a person convicted of making indecent images of children.
Ms Reilly and Mr Selwood were close friends, buying a property together as an investment in their joint names, with a joint bank account for the mortgage, holidaying together, and sometimes staying the night in the same house. They did not, however, live together, nor were they in a romantic relationship. In 2009, witnessed by Ms Reilly, Mr Selwood was arrested on suspicion of downloading indecent images of children online. At the time of Mr Selwood’s arrest, Ms Reilly was in the process of applying to be a head teacher at a primary school. She did not disclose Mr Selwood’s arrest to the school during her successful application process nor did she do so when he was subsequently convicted of making indecent images of children, by which time she had started her job as head teacher. Ms Reilly remained close friends with him, going on holiday with him a few months after his conviction.
The school learnt of Mr Selwood’s conviction. Ms Reilly was suspended and later summoned to a disciplinary meeting to answer an allegation that, in having failed to disclose her relationship with a man convicted of sexual offences towards children, she had committed a serious breach of an implied term in her contract of employment, which amounted to gross misconduct. Ms Reilly was summarily dismissed. Her internal appeal was unsuccessful.
Ms Reilly claimed that she had been unfairly dismissed, maintaining that she had been under no duty to disclose the information. The tribunal found that the decision to dismiss her was not unfair, and she unsuccessfully appealed to the EAT and the Court of Appeal.
Ms Reilly appealed to the Supreme Court on the basis that the disciplinary panel should not have accepted that she was under a duty to disclose her relationship with Mr Selwood. She accepted that she was under a contractual duty to assist the governing body in exercising its functions relating to safeguarding children. However, Ms Reilly said that there was no evidence which suggested that her particular relationship with Mr Selwood engaged the governing body’s safeguarding functions.
The Supreme Court commented that Parliament had recognised, as shown by the Childcare Act 2006, that sexual offenders towards children can represent danger to children both directly and indirectly, by operating through those with whom the offender associates. The legislation would not prohibit Ms Reilly from working with children because of her relationship with Mr Selwood (although she would be prohibited from doing so if she lived with him). However, a head teacher is likely to know more than any other member of staff about pupils, their circumstances at home, their personalities, their routines at school and their whereabouts from day to day. As a head teacher, she would be likely to be more able than any other member of staff to authorise visitors freely to enter school premises. Mr Selwood was the subject of a serious recent conviction, and the basis of his sentence was that he represented a danger to children. The risk created by their relationship required assessment, and it was not for Ms Reilly to conduct the assessment: she should have disclosed the relationship. Reporting the connection would have enabled a serious discussion to take place about how risks might have been avoided.
The Supreme Court held, therefore, that the tribunal had been entitled to conclude that it was a reasonable response for the disciplinary panel to have concluded that Ms Reilly’s non-disclosure not only amounted to a breach of duty, but also merited her dismissal. Her refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, it was reasonable to conclude, rendered it inappropriate for her to continue to run the school.
What does this mean for employers?
Ms Reilly was not dismissed for having a personal relationship with Mr Selwood, but for failure to report the relationship, which her employer (reasonably) treated as misconduct. Her failure to report the relationship was exacerbated by her continuing refusal to acknowledge that her relationship put children at school at risk.
Employers who wish employees to disclose specific kinds of relationships should consider a “relationships policy”, stipulating the kinds of relationships (in and out of work) that employees should disclose, and to whom they should be disclosed. This is particularly relevant where employees work with vulnerable people, have regulated functions, or are in managerial roles. A relationship policy does not generally prohibit relationships, or allow for dismissal solely because of relationships, but requires disclosure, so that employers can assess any risks presented by the relationship (for example, regulatory risks, risk of real or perceived favouritism, or the kind of risk presented by Ms Reilly’s relationship). This enables employers to put in place checks and balances to mitigate risks. The policy should make clear the disciplinary sanction that may result where employees fail to disclose.