In the recent case of A v B and another, the Court of Appeal upheld a primary school’s decision to dismiss its headteacher for misconduct on the basis that she had failed to disclose her relationship with a person who had previously been convicted of making indecent images of children. The Court of Appeal found that the headteacher had failed in her safeguarding responsibilities when deciding that there was no need to disclose to the school her relationship with the offender or his conviction.
A, had been headteacher at the school since 2009. She had previously taught in other schools for twenty three years. A’s relationship with the individual began in 1998. They bought a house together as an investment but A did not live there. They were not romantically attached but their relationship was more than a financial one.
A had pursued advice from various people including a police officer, a probation officer, the CRB and governors at other schools regarding whether she should disclose information to her employer about her relationship with the individual and his conviction. She did not make the disclosure as she understood that it was not obligatory to do so. When the school became aware of the relationship they suspended A. Following an investigation she was dismissed for gross misconduct. A’s appeal was rejected and she brought a claim for unfair dismissal and sex discrimination. A’s claim was rejected by the Employment Tribunal and Employment Appeal Tribunal before she appealed to the Court of Appeal.
The Court of Appeal dismissed A’s claim as it was held that It was not for her to decide whether her relationship with the individual gave rise to a risk of harm. The obligation to disclose existed so that the school could evaluate that for itself. The Court of Appeal further noted that disclosure was necessary so that the governing body could consider what protective steps were required in light of it. On this basis, it went without saying that any interference with A’s private life under Article 8 was necessary for the protection of the children.
The Court of Appeal also felt that her association with the individual did pose a risk The Court of Appeal noted that due to A’s position as a headteacher (which included safeguarding responsibilities), she should have reflected carefully on her situation. It was also pertinent for the Court that the disciplinary rules applicable to A specified that a failure to report any issue which there was a duty to report, was an example of conduct that could give rise to action by the school.
The decision by the Court of Appeal was not unanimous and Elias J noted that there was no evidence to say what the enhanced risk was. Therefore, there were no reasonable grounds to conclude that the nature and circumstances of the relationship between A and the individual increased the risk to the children that would need safeguarding.
The Court of Appeal did make it clear that dismissal in these situations is not inevitable. A’s dismissal was because of her failure to disclose the information about the individual to the school and A’s subsequent failure to admit that she had made an error of judgment.
This case highlights that unfair dismissal claims are often heavily fact-specific and careful consideration will be needed as to the underlying reasons behind the dismissal and whether the decision fell within the band of reasonable responses.
Should you or your business require any further guidance on the above points or unfair dismissals then please contact us on 0161 672 1425.