18 February 2020

Can you be fairly dismissed for failing to inform your employer of a child protection issue?

A probation officer dismissed

The Employment Appeal Tribunal (EAT), in the recent case of Q v Secretary of State for Justice, has upheld a decision that the Probation Service, as an employer, did fairly dismiss a probation officer for failing to keep her employer informed of child protection concerns regarding her daughter.

Q had been employed as a probation officer by the respondent since 1994.

Child Protection Register

In 2014, it was alleged that Q had been violent towards her daughter and, as a result, the child was placed on the Child Protection Register.

Whilst Q denied the allegation, social services advised Q to notify her employer of the incident, particularly given the safeguarding nature of her role. However, Q failed to do so. When the incident was eventually brought to the respondent’s attention by social services, the respondent instigated disciplinary proceedings against Q, following which she was issued a final written warning for gross misconduct and was demoted.

 

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In February 2015, Q’s daughter was removed from the Child Protection Register and Q informed the respondent of this change. Q also kept her employer updated when there was a further incident between her and her daughter in March 2015 that led to Q being visited by social services and the police. However, despite this dialogue, Q once again failed to notify the respondent of the newly imposed Child Protection Plan which was issued in response to the perceived risk that Q posed to the child.

In June 2015, the respondent became aware of the second incident and commenced further disciplinary proceedings against Q. Q was dismissed for failing to inform her employer of the existence of the Child Protection Plan, and the manner in which she was involved with social services, which could have caused reputational damage to the respondent.

The Employment Tribunal

Q brought a claim of unfair dismissal against the respondent but this was rejected by the tribunal.

The tribunal held that, as Q had previously received a final written warning for her failure to disclose in almost identical circumstances, Q would have been aware of her obligation to disclose and of the consequences of not doing so. It was, therefore, reasonable for the respondent to dismiss Q, particularly given the respondent’s role in the criminal justice system, and the higher expectations it places on its employees.

Q also argued that the dismissal breached her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) because the respondent considered private information that was not in the public domain when deciding to dismiss her. In particular, the allegations of domestic abuse, the welfare of her children, and her interactions with social services.

Whilst the tribunal accepted that Q’s Article 8 right was engaged, it decided that the dismissal was a proportionate interference with that right because the nature of the information was capable of bringing the respondent’s reputation into disrepute, and could undermine the public’s confidence in the Probation Service. The tribunal specifically stated that the respondent was required to work in partnership with social services to ensure that its staff behaved in a way that was in keeping with their safeguarding obligations to the public.

Q appealed to the EAT.

Appeal to the EAT

The EAT dismissed Q’s appeal and agreed that she had not been unfairly dismissed.

In relation to the alleged breach of Q’s Article 8 rights, the EAT found that the respondent had been legitimately concerned as to whether there had been any further incident or involvement with social services in which Q’s alleged conduct had been an issue. The respondent had not required Q to disclose every detail of her involvement with social services, however, Q’s express and implied duties to her employer were sufficient enough to require her to disclose relevant information to her employer. The EAT agreed that any interference of Q’s Article 8 rights by the respondent had been permitted in the circumstances.

Impact on schools

Schools have a duty to ensure the safety of their pupils and to ensure that their staff do not pose a risk to children. In the event that concerns are raised regarding a member of staff’s suitability to work with children, the school must follow the reporting procedures set out in its Safeguarding Policy and Keeping Children Safe in Education.

The ISBA template contract of employment for teachers includes a standard clause which confirms that a failure to disclose “any circumstances that may impact on your suitability to work with children” may be treated as a disciplinary matter and could lead to dismissal. A failure to disclose will, therefore, amount to a breach of contract.

This case acts as reassurance for schools that dismissing an employee on the basis of a failure to disclose information regarding their suitability to work with children may be considered a fair dismissal. It is, of course, always necessary for schools to follow a fair process when considering doing so and taking early legal advice, as well as maintaining a good paper trail is recommended.

 

If you have more questions, please contact our Education team now.

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About the Author
Emma Glazzard, Solicitor

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