15 November 2016

Fair dismissal of headteacher for failing to disclose association with sex offender

The Court of Appeal in the case of A v (1) B Local Authority (2) C Governing Body of School [2016] EWCA Civ 766 considered whether an employment tribunal was entitled to find that a headteacher’s dismissal for failing to disclose her relationship with a person convicted of making indecent images of children was within the range of reasonable responses.

Facts

A was employed as a headteacher at a primary school from September 2009 until she was summarily dismissed in May 2011 for gross misconduct. Prior to this, she had been successfully teaching in primary schools for 23 years without blemish.

A had known IS, a male convicted sex offender, since 1998 and had developed a relatively close, though unromantic, relationship with him. Despite not living together, A co-owned a house with IS where IS resided and where A would stay on occasion. A joint bank account had been set up to pay the mortgage and A and IS holidayed together.

In February 2010, IS was convicted of making indecent images of children by downloading them onto his computer and was made subject to a sexual offences prevention order forbidding him from having unsupervised access to children under the age of 18.

Although the governing body was under a duty to safeguard and promote the welfare of pupils, there was nothing in the school’s policies or procedures that provided explicit advice on the duty to disclose a relationship of this nature.

A alleged that she sought advice from various quarters, including the police, the CAB, the Probation Trust and governors at other schools, as to whether or not she ought to disclose information to the school about her relationship with IS and his offending and had been advised that it was unnecessary. Exercising her professional judgement, A did not make a disclosure to the governing body.

The school subsequently became aware of the relationship and, following an internal investigation, A was charged with gross misconduct and dismissed on the basis of the failure to disclose her relationship with IS and the nature of his conviction.

A appealed against the decision which was unsuccessful and so she brought a claim in the Employment Tribunal for unfair dismissal and sex discrimination.

The Tribunal found that the school had acted reasonably in dismissing A for misconduct as a result of her failure to disclose her relationship with IS and his conviction. The reasons given were that it was obvious that such a failure to disclose, irrespective of the contractual terms, amounted to misconduct; A had sought advice and therefore must have been aware of the importance of the information; and that dismissal was in the range of reasonable responses given her position, failure to acknowledge and error of judgement.  Nevertheless, the decision was rendered unfair by procedural deficiencies in the investigation and appeal.  To reflect this, A was not awarded compensation.

A appealed to the Employment Appeal Tribunal where the case was dismissed.  A subsequently appealed to the Court of Appeal on the basis that there was no proper evidence to suggest that she was under a duty to disclose the information.

Court of Appeal decision

The Court of Appeal rejected A’s arguments and upheld, by majority, the decision of the original Employment Tribunal. The Court was of the view that A’s relationship with IS posed a risk to the children of the school and that she had a duty to inform the school so that protective steps could be taken. In light of A’s position as Headteacher and her role of assisting the governing body in relation to issues of safeguarding and child protection, she ought to have realised the risk herself.

The Court also concluded that it was not for A to decide whether her relationship gave rise to a risk. She had an obligation to disclose “in order to allow the school to take that decision for itself”.

Comment

The key principle in this case was A’s failure to disclose her relationship with IS rather than the nature of the relationship per se, and A’s later failure to recognise that she had made an error of judgement.

The decision does not provide any detailed guidance on the obligations of a governing body in relation to safeguarding but there appears to be a much broader interpretation of the safeguarding duty which applies to teachers.  The questions the Court will consider is, firstly, whether a reasonable person with knowledge of all the facts would consider that a duty to disclose existed and, secondly, whether there is a reasonable belief that there may be a greater risk to the pupils.

The decision inevitably highlights the difficult balancing act for schools tasked with safeguarding concerns.  Nevertheless, a number of practical implications follow:

  1. Teachers, especially those in senior roles, should be constantly mindful of safeguarding concerns.
  2. Schools should ensure that contracts of employment include broad duties of disclosure on matters that pose a risk to the safety of pupils.
  3. Review and, where necessary, update school policies and procedures on the duty of staff to disclose matters which pose a potential or ongoing risk to school students.
  4. Schools should ensure that teachers and other members of staff are adequately trained to recognise potential risks.
  5. If in doubt, disclose.
  6. If you are considering the dismissal of a teacher or other members of staff for a safeguarding reason or any other reason, the disciplinary processes must be conducted properly and fairly.

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About the Author
Jenny Okafor-Jones, Partner (Barrister), Head of Employment & Immigration Team
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