The Supreme Court has upheld a finding by the ET and EAT that a headteacher was fairly dismissed in circumstances where she had failed to disclose a relationship with a known sex offender.

The Claimant was a headteacher at a primary school. For several years she had maintained a close relationship with a friend with whom she had bought a house as an investment. The relationship between the two was not romantic, but the Claimant was named on her friend’s car insurance and the two had been on holiday together. About a year after the Claimant was appointed, her friend was convicted of making indecent images of children. He was made subject to a sexual offences protection order, which meant that he could not be alone with children under 18 without supervision. The Claimant was not sure whether she needed to disclose the offence, or the relationship, to the school and asked advice from a number of different people, including a police officer and governors of other schools. She concluded that she wasn’t required to share this information, and did not do so. The school subsequently learned of the offence and the relationship and dismissed the Claimant for gross misconduct. Its view was that the Claimant, given the safeguarding and child protection aspects of her role, should have known that any concern in this area, even if very minor, should be disclosed. Further the Claimant’s failure to understand that and to accept that she had erred meant that the only available sanction was summary dismissal.

When the Claimant brought a claim for unfair dismissal, the Tribunal held that the dismissal was within the range of reasonable responses, and that even if there was no express written obligation on the Claimant to disclose these matters, it ought to have been obvious that she should do so, given the nature of her role. The Claimant appealed unsuccessfully to the EAT and then the Court of Appeal which upheld the ET’s finding. It stressed the public policy aim of protecting young children and that Parliament’s approach to this issue was to protect children not only from sex offenders themselves but also from their close associates, due to the risk of grooming. The Court again relied not only on the failure to disclose but also on the Claimant’s failure to admit her error.

This decision was unanimously upheld by the Supreme Court, which again focussed on the grooming risk. Given the Claimant’s significant influence over the children and within the school, and the seriousness of her friend’s offence, a potential risk to the children arose. This risk needed to be assessed by the school governors. As such the non-disclosure of the relationship (even on its own) amounted to a breach of duty warranting dismissal – the failure to accept her error made the Claimant’s offence even more serious.

Interestingly the judgment cast doubt on the long-established Burchell test for whether a dismissal is fair (the test being whether (a) the employer had a belief in the employee’s misconduct; (b) it had reasonable grounds for doing so and (c) it had carried out a reasonable investigation). The Court held that the Burchell test can probably always identify whether (1) there has been misconduct, and (2) that that is the reason for dismissal, but it may not always identify whether (3) in all the circumstances, dismissal is a reasonable reaction to that misconduct. All three of these limbs must be established for a dismissal to be fair under the Employment Rights Act.

Comment

This case is a salutary reminder that Tribunals will expect extremely high-standards of conscientiousness from senior employees with public-serving functions, particularly where children or other vulnerable people are concerned. This clearly hardens their approach to the fairness of dismissals when those standards are not met, which may not be the case for someone with a lesser role where the potential public risk was lower.

It will be interesting to see whether this case turns the tide in the way that unfair dismissal cases are considered. The Burchell test has remained good law for 40 years and the Supreme Court has indicated that it is open to hearing a challenge to it. That is an issue to be watched as it could potentially change the way dismissals are conducted internally. We will be looking out for further developments in this area.

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