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Case update (1): Unfair dismissal: Safeguarding & sex offenders

case updates - small person sitting on large briefcaseSummary: Is the dismissal of a head teacher for their association with someone who had been convicted of possessing indecent images of children, fair?

Yes, says the Court of Appeal in A v B and another, available here, on the basis that the head teacher did not disclose her relationship with that person.

Facts: The employee, A, was appointed as head teacher of a primary school in 2009, having successfully taught in other schools for 23 years.  Since 1998 A had maintained a relationship with a man (named by the Court as IS) and they bought a house together as an investment. IS lived in the house but A did not, although she occasionally stayed there. A and IS also went on holiday together. Although the relationship was not sexual it was more than just financial.

In February 2010, IS was convicted of making indecent images of children and was made subject to a Sexual Offences Prevention Order which forbid IS from having unsupervised access to children under 18.

A sought advice from various people including a police officer, a probation officer, the Criminal Record Bureau (now the Disclosure and Barring Service) and governors at other schools about whether she ought to disclose information about her relationship with IS and his offence to the school. She understood that it was not necessary so did not make the disclosure.

The school subsequently became aware of A’s relationship with IS and of his conviction, and A was suspended. After an investigation A was charged with gross misconduct and dismissed. The reasons given for her dismissal were:

A appealed against the decision, but this was also dismissed. A brought Tribunal claims for unfair dismissal and sex discrimination.

The Tribunal and Employment Appeal Tribunal (“EAT”) found that the school had acted reasonably in dismissing A for gross misconduct on the basis that she did not disclose her relationship with IS.  A appealed to the Court of Appeal.

The Court dismissed A’s appeal and upheld the Tribunal and EAT’s decision that A had been fairly dismissed. The Court found that she had failed in her safeguarding responsibilities by unilaterally deciding that there was no need to disclose to the school her relationship with the offender and his conviction. Given her position, she should have realised that it was relevant information which she should have provided to the school so that it and the governing body could decide for themselves what steps to take in light of the information and implement appropriate protective measures if appropriate.

Implications: Although decisions by the courts on these matters will depend on the facts of each case, the Court of Appeal has helped to strengthen the position of employers who have similar concerns about employees and may be considering dismissal.

The dismissal is likely to be fair if the employer is able to show that continued employment presented a real risk to vulnerable individuals and that they have followed a fair disciplinary procedure.  The role of the employee, their influence over others and any exposure they have to children or vulnerable individuals will need to be taken into account as part of this procedure.  It is also important to note that the dismissal in this case was for the employee’s failure to disclose, rather than because the school had concluded that the relationship made her position untenable.

Relevant employment policies and contracts should also be reviewed to ensure that, as far as is possible, employees are under a duty to report all known or suspected associations with sex offences or offenders.

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