4th August 2016
Unfair dismissal and disclosure of relationships
The Court of Appeal has upheld the decision of an Employment Tribunal in respect of an unfair dismissal claim involving a head teacher who did not disclose her relationship with a sex offender. The school had dismissed the Head Teacher for misconduct on account of the non-disclosure.
The Head Teacher and the convicted sex offender were not romantically attached; however they had holidayed together and bought a house jointly as an investment. The Head Teacher had sought advice from various individuals including the police, the probation service, the CRB and governors at other schools in respect of whether she should disclose the relationship to her school. She had understood that it was unnecessary for her to disclose the information.
When the school became aware of the relationship and the conviction, the Head Teacher was suspended and was found to have committed actions amounting to gross misconduct. She was thereafter dismissed. The reasons for the dismissal were that one role of a Head Teacher is to assist the governors in discharging their duty of safeguarding and child protection and, because the Head Teacher in question did not disclose the relationship, she was putting the safety of the children at risk. Secondly, if the Head Teacher had accepted her error in not disclosing the material facts, the school may have considered a less severe penalty, especially in light of her clean disciplinary record. Unfortunately, she had not shown this remorse.
The Head Teacher appealed to the school in respect of the decision, but this was dismissed and she therefore brought a claim to the Employment Tribunal. The Tribunal held that the dismissal was technically unfair on procedural grounds, but the award was reduced by 90% on account of the employee’s conduct.
The Head Teacher thereafter appealed to the Employment Appeals Tribunal on the basis that there was no evidence to justify the assertion that she should have disclosed the information. The EAT dismissed the appeal.
The Head Teacher appealed to the Court of Appeal which dismissed the appeal by majority. The Court held that the association with the convicted sex offender meant that there was a risk to the children and she should have disclosed the fact to the school so that they could have decided whether any action would be needed. The Court noted the Head Teacher’s duties in respect of safeguarding and also the fact that the disciplinary procedure stated that the court could take action if there was a failure to report any matter that should have been reported.
Importantly, the case does not confirm exactly what information teachers should disclose to schools. A potential issue with this position is that teachers may disclose information when they are not so obliged which may give rise to dismissals. It would be for the tribunal to decide whether such dismissals were fair. The case does highlight the possibility of dismissing in consequence of matters arising outside of employment; employers must have sound reasoning for doing so, however, and 8must show that the business is placed at risk or at a serious disadvantage in some way.