Wednesday, March 14, 2018

Why Didn't You Tell Us?

The Supreme Court has held that an Employment Tribunal was correct to find that a Head Teacher could be fairly dismissed for failing to disclose to her employer the fact that she had a close relationship with a sex offender.

Ms Reilly was Head at a primary school in Sandwell. She had a close but non-sexual relationship with a Mr Selwood. They owned a house together. Mr Selwood lived there and  Ms Reilly slept there some nights, but they did not live together.

Mr Selwood was convicted of possessing child pornography, with images ranging from level 1 to level 4 on the scale of seriouness.

Ms Reilly did not inform her employer of the conviction. She stated that she had canvassed opinion from a range of professionals as to whether she was obliged to do so and that she had been informed that she did not have to, although there was a factual dispute as to the accuracy of what she said in this respect.

Sandwell Council learnt of Mr Selwood's conviction and Ms Reilly's close relationship with him and she was dismissed for gross misconduct due to her failure to disclose the relationship.

She brought a claim for Unfair Dismissal. Whilst this was upheld on technical grounds, it was found that there was a 90% chance of a fair dismissal and that she 100% contributed to her own dismissal. She therefore received no compensation and the finding effectively meant that in substance the dismissal was fair. 

She unsuccessfully appealed to the Employment Appeal Tribunal and from there to the Court of Appeal.

Her last chance was an appeal to the Supreme Court.

Giving the leading Judgment, Lord Wilson firstly reminded himself that the Supreme Court only hears appeals on points of law and the decision on the facts is one for the initial Tribunal. He then further reminded himself that in the case of dismissal for misconduct the "Burchell Test" applies - in other words the employer must have a genuine belief in guilt based on reasonable grounds and the procedure and the decision to dismiss must be "within the range of reasonable responses." In other words, the employer must simply have acted reasonably and not necessarily in the same way that the Court would have done.

He found that the test was clearly satisfied. The Council were reasonably entitled to take the view that the relationship engaged their safeguarding responsibilities and should have been disclosed to them. The allegations against Mr Selwood were serious. The fact that Ms Reilly still did not accept that her failure to disclose was wrong was reasonably treated as a relevant factor. It was potentially of relevance to consider that in certain circumstances it is not legally permitted for someone to work with children if they are living in the same household as someone who is disqualified for doing so.

The irony was that if the relationship had been disclosed it is highly unlikely that she would have been dismissed (or if she had been that this would have been a fair dismissal.) The most likely outcome would have been that measures would have been put in place to protect children (for example requiring her to ensure that he did not enter school premises or have access to information about pupils.)

Lady Hale in her Judgment commented that the case might have provided an opportunity to hear argument as to whether conduct which is not a breach of contract can justify a fair dismissal. As this has not been argued however, she did not express any view on this. It must however be highly likely that there are circumstances where it could.