Veale Wasborough Vizards
29 JUL 2016
Headteacher fairly dismissed for failing to disclose association with sex offender
Solicitor, Veale Wasbrough Vizards
The Court of Appeal has considered whether an employment tribunal was entitled to find that a Headteacher's dismissal for failing to disclose her friendship with a sex offender was within the range of reasonable responses.
In A v B and another, A was a Headteacher of a primary school who had maintained a close, though unromantic, relationship with a man (IS) since 1998. A and IS lived separately, though jointly owned a house, had a joint bank account and also holidayed together.
In 2009, IS was convicted of making indecent images of children. A was aware of this but failed to disclose her association with him to the Governors of her school, as she felt she was under no obligation to do so. After becoming aware of her relationship with IS, the school dismissed A for gross misconduct.
Her appeal against the decision was dismissed and so she brought a claim in the Employment Tribunal (ET) for unfair dismissal and sex discrimination.
The ET found that the school had acted reasonably in dismissing A for misconduct on the basis that she did not disclose her relationship with IS, but because of deficiencies in the appeal process the dismissal was technically unfair.
However, the ET concluded that even if the appeal process had been fair, there was a 90% chance that A would have been dismissed in any event and that her contributory fault was 100%. As a result, she did not receive compensation. A appealed to the Employment Appeal Tribunal then to the Court of Appeal.
The Court of Appeal's majority decision
The Court of Appeal, by majority, upheld the ET's decision that the school had acted reasonably in dismissing A. Black LJ concluded that A's association with IS, "although falling short of living in the same household or being in 'a relationship', did give rise to risk to children at the school".
Therefore, as A was a Headteacher with the role of assisting the governing body in relation to issues of safeguarding and child protection, she had a duty to disclose the friendship and ought to have known that this was the case.
Floyd LJ also concluded that it was not for A to decide whether her relationship gave rise to a risk of harm. She had an obligation to disclose "in order to allow the school to take that decision for itself".
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In this case, it was A's failure to disclose her association with IS, rather than her maintaining the friendship itself, which lead to A's dismissal. Headteachers are expected to be aware of the key issues of safeguarding and child protection and, as this case illustrates, to disclose any matter or circumstance that might lead to an increased risk of harm to children.
Schools are well advised to ensure contracts of employment include broad duties of disclosure when it comes to issues that might affect the risk of harm to children and to ensure staff are adequately trained to recognise potential risks.
The case is also a good reminder to all employers that all stages of a disciplinary process must be conducted properly and fairly. Failure to do so at any stage, including the investigation and any appeal, risks rendering the process and any subsequent dismissal, unfair.