Was the dismissal of a headteacher who had a close relationship with an offender fair?

A recent Supreme Court decision has held that the dismissal of a teacher who failed to disclose her relationship with an offender was fair. This case is an important decision for schools as it highlights the importance of teachers’ safeguarding responsibilities and the necessity for disclosure where the safeguarding of children is concerned.

The case: Reilly v Sandwell Metropolitan Borough Council

The Supreme Court has upheld an employment tribunal’s decision which determined that it was fair to dismiss a headteacher as a result of her failure to disclose her relationship with an individual convicted of a serious criminal offence. The headteacher had a duty to disclose this relationship to the school as it posed a potential risk to the school’s pupils.

The facts of the case

The headteacher, the Appellant, was the headteacher of a primary school maintained by Sandwell Metropolitan District Council, the Respondent. The Appellant had been teaching in primary schools for over 23 years and had an unblemished record.

Prior to and during her appointment at the school, the Appellant was in a ‘close relationship’ with Mr Selwood (S), who was convicted of making indecent images of children. The relationship was not romantic and the parties did not live together, however, they would holiday together, shared a joint bank account, the Appellant was a named driver on S’s car insurance policy and sometimes stayed over at S’s residence.

The Appellant became aware of S’s arrest during the application process for the role of headteacher. The Appellant was appointed as headteacher and during her time at the school S was convicted of making indecent images of children and made subject to a Sexual Offences Prevention Order which forbid him from having unsupervised access to children under 18. At no point did the Appellant inform the school of S’s arrest or conviction or their relationship.

The Appellant never disclosed her relationship with S to the school or the Respondent. The relationship was later discovered by the Respondent whilst the Appellant was employed as the headteacher at the school. The Appellant was charged with gross misconduct and was dismissed following suspension and an investigation.

The Appellant claims she sought advice from various persons including a police officer regarding whether she should disclose the relationship. She made a judgement based on this advice that she was under no obligation to disclose the relationship to the school or the Respondent.

Reasons for dismissal

The Respondent alleged that the Appellant had committed a serious breach of an implied term in her contract of employment which amounted to gross misconduct. When providing reasons for her dismissal, the Respondent highlighted the following:

• The role of a head teacher is to assist the governing body in discharging its functions, one of which is safeguarding and child protection. The Appellant’s failure to disclose her relationship with S put the safety of children at risk.
• The Appellant’s ‘failure to recant’ led the school and governing body to believe that dismissal was the only appropriate sanction. If she had accepted her error, the school might have considered an alternative sanction to dismissal, particularly in light of her unblemished disciplinary record.

The Appellant appealed and claimed that she has been unfairly dismissed. The Employment Appeal Tribunal, the Court of Appeal and the Supreme Court upheld the Employment Tribunal’s view that the Appellant’s non-disclosure amounted to a breach of duty and merited her dismissal. Her refusal to accept that she was in a breach of her duty suggested a lack of insight and rendered it inappropriate for her to continue to run the school.

The Supreme Court held that the Appellant had a duty to ‘advise, assist and inform’ the primary school’s governing body in the fulfilment of its safeguarding responsibilities towards the school’s pupils. The Appellant’s relationship with S created at least the potential for an enhanced risk to the school’s pupils and therefore engaged the school’s statutory safeguarding duty.

The Supreme Court recognised that, had the Appellant disclosed her relationship to the school and the Respondent, it is highly unlikely that she would have been dismissed as the parties could have put in place protective measures to ensure any potential safeguarding issues were dealt with.

Comment

The Supreme Court noted that Parliament has itself recognised that child sex offenders can represent an indirect danger to children by operating through those with whom they associate. The Appellant was a head teacher and therefore she would be likely to know more than any other member of staff about the pupils, for example, their circumstances at home, their personalities and their whereabouts from day to day. Headteachers are also likely to be more able than any other member of staff to authorise visitors freely to enter school premises.

Headteachers and teachers who are associated with offenders may therefore pose a risk to school pupils and should disclose these relationships to ensure that any safeguarding issues are identified and dealt with appropriately. It is of paramount importance that individuals who work within schools are aware of their safeguarding responsibilities and the importance of disclosure in these circumstances.