Head teacher fails in Supreme Court challenge to dismissal over failure to disclose

The Supreme Court has unanimously dismissed an appeal brought by a head teacher who was sacked after she failed to disclose her friendship with a convicted sex offender to a local authority.

In Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 Caroline Reilly was the former head teacher of a primary school which was, at the relevant time, maintained by Sandwell.

Approximately ten years before she became the head teacher of the school, she met a man named Ian Selwood, who became her close friend. They were not, however, in a sexual or romantic relationship.

In 2003 they bought a property as an investment in their joint names and set up a joint bank account to pay the mortgage instalments. Selwood lived in the property and Reilly sometimes stayed there overnight.

In January 2009 Reilly applied for the position of head teacher at the school. On 25 February 2009, having just stayed overnight at their jointly owned property, she witnessed Selwood’s arrest by the police on suspicion of having downloaded indecent images of children.

Reilly was subsequently appointed to be head teacher and took up the position on 1 September 2009.

Selwood was convicted on 1 February 2010 of making indecent images of children by downloading them onto his computer.

Although Reilly became immediately aware of his conviction, she decided not to disclose it to the governing body of the school. Her close friendship with Selwood continued, and in April 2010 they went on holiday together.

In June 2010 Sandwell learnt of Selwood’s conviction, and of Reilly’s friendship with him. It suspended Reilly and subsequently summoned her to a disciplinary hearing in May 2011.

At that hearing, the panel upheld the allegation that, by having failed to disclose her relationship with a man convicted of sexual offences towards children, Reilly had committed a serious breach of an implied term of her contract of employment which amounted to gross misconduct.

The panel were particularly concerned by Reilly’s continuing refusal to accept that her relationship with Selwood might pose a risk to pupils and the school, and that she should therefore have disclosed it to the governors.

Reilly was, as a result, summarily dismissed.

She subsequently brought proceedings for unfair dismissal and sex discrimination in the Employment Tribunal, maintaining that she had been under no obligation to disclose the information.

The Tribunal held that, save for an irrelevant procedural element, the decision to dismiss her had not been unfair. Her sex discrimination claim was also dismissed.

Reilly thereafter appealed to both the Employment Appeal Tribunal and the Court of Appeal on the unfair dismissal point, but was unsuccessful on both occasions.

The Supreme Court unanimously dismissed the appeal. Lord Wilson gave the judgment with which Lord Carnwath, Lord Hughes and Lord Hodge agreed. Lady Hale gave a concurring judgment.

Lord Wilson said an inquiry into whether a dismissal was unfair was governed by s.98 of the Employment Rights Act 1996.

In summary, this requires that the employer show:

(i) that there is a reason for the dismissal,

(ii) that that reason relates to the employee’s conduct or is similarly justifiable, and

(iii) that they acted reasonably in treating the reason as sufficient for the dismissal.

On this latter point, i.e. the reasonableness of the employer’s conduct, the courts have for many years employed the test set out in the case of British Home Stores Ltd v Burchell [1980] ICR 303.

Lord Wilson said this has been considered, in effect, to require the tribunal to inquire whether the dismissal was within a range of reasonable responses to the reason shown for it, and whether it had been preceded by a reasonable amount of investigation.

The Supreme Court judge added that in this case, Reilly was under a contractual obligation to assist the governing body in discharging its duty to safeguard the pupils, and the question was whether her relationship with Selwood engaged the governing body’s safeguarding functions.

Parliament had previously recognised (for example via the Childcare Act 2006 and the regulations made under it) that sexual offenders towards children can represent a danger to children not only directly but also indirectly by operating through those with whom the children associate, Lord Wilson said. Selwood was the subject of a serious, recent conviction and the basis of his sentence was that he represented a danger to children.

The Supreme Court judge noted that as head teacher, Reilly was likely to know important information about her pupils, including their whereabouts, their routine and their circumstances at home. She was also likely to be able to authorise visitors freely to enter the school premises.

Selwood’s relationship with Reilly therefore created – “to put it at its lowest” – a potential risk to the children at the school. This risk required the assessment of the governors; it was not for Reilly to conduct that assessment.

Lord Wilson said: “As head teacher, she represented, as [counsel] on behalf of Sandwell submits, the eyes and ears of the governors in the school. Had she disclosed her relationship to them, it is highly unlikely that she 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.”

The Supreme Court judge said that in his opinion the tribunal was “entitled to conclude that it was a reasonable response for the panel to have concluded that Ms Reilly’s non-disclosure not only amounted to a breach of duty but also merited her dismissal. For her refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, as it was reasonable to conclude, rendered it inappropriate for her to continue to run the school.”

This article was based in large part on the Supreme Court’s press summary.