A head teacher failed to tell her governors that a close friend had been convicted of an offence involving indecent images of children. The employment tribunal found that her dismissal was procedurally unfair but that she could reasonably have been dismissed for the non-disclosure. Her Supreme Court appeal concerned that second finding.
What the governors needed to know
Ms Reilly was head teacher at a maintained primary school. She had a close and longstanding friendship with the man but did not share his household.
Ms Reilly knew of the conviction and continued the friendship. She did not tell her employer or the governing body.
Dismissal and the tribunal
When the local authority learned of the relationship, a disciplinary panel considered whether her failure to disclose it amounted to gross misconduct. The panel also considered her continuing refusal to recognise a potential risk to pupils. She was summarily dismissed and an internal appeal failed.
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The employment tribunal found that the reason for dismissal was the non-disclosure; that Sandwell genuinely believed this was misconduct; and that there were reasonable grounds for that belief. It described it as obvious that a head teacher’s failure to disclose such information was misconduct whether or not the contract said so. Despite her record, it held that dismissal was within the range of reasonable responses, especially because she still refused to accept that she had been wrong.
The tribunal also found the appeal hearing so unsatisfactory that the dismissal was procedurally unfair. Following the approach in Polkey v A E Dayton Services Ltd, it found a 90 per cent chance that a satisfactory hearing would still have led to dismissal and reduced compensation by 90 per cent. Under section 123(6) of the Employment Rights Act 1996 it assessed her contribution to the dismissal at 100 per cent. She challenged both conclusions, but accepted that they would arise only if the finding that the dismissal was substantively fair were set aside.
The question for the courts
Under section 98 of the 1996 Act, Sandwell had shown the reason for dismissal and that it related to conduct. The dispute concerned section 98(4): whether, in the circumstances and in accordance with equity and the substantial merits, Sandwell acted reasonably in treating that reason as sufficient for dismissal.
Lord Wilson, with whom Lord Carnwath, Lord Hughes and Lord Hodge agreed, stressed that the tribunal does not answer directly whether the dismissal was unfair. It asks whether dismissal was within the range of reasonable responses. An appeal lies only on a point of law, so the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court were further removed: absent a procedural error, they could interfere only if the tribunal had not been entitled to reach its conclusion.
The parties did not ask the Court to reconsider the established approach in British Home Stores Ltd v Burchell to an employer’s belief in misconduct and the investigation supporting it. Here the fact of non-disclosure was admitted.
Why disclosure was required
Ms Reilly’s principal challenge was that she had been under no duty to disclose this relationship. Sandwell said the duty arose from her contract. Section 175(2) of the Education Act 2002 required the governing body of a maintained school to exercise its functions with a view to safeguarding and promoting pupils’ welfare. Her job description required her to advise, assist and inform the governing body and made her accountable for pupils’ safety. She accepted that she had a contractual duty to assist the governing body in that task. The disciplinary provisions also identified failure to report something which it was her duty to report as conduct which might lead to disciplinary action.
She asked what evidence showed that this relationship engaged the safeguarding functions. The disciplinary panel proceeded on the basis that it did, and the tribunal called the point obvious. The Employment Appeal Tribunal and, by a majority, the Court of Appeal held that this view was open to the tribunal. Black and Floyd LJJ formed the majority. Elias LJ dissented, holding that there was no such evidence.
Lord Wilson referred to childcare legislation as an illustration of Parliament’s recognition that risk may arise through close associates. Those disqualification provisions did not apply to Ms Reilly or the school.
As head teacher, Ms Reilly had access to information about pupils and could authorise visitors. The governors were entitled to assess the potential risk and discuss safeguards. Lord Wilson considered it highly unlikely that the friendship itself would have led to dismissal had it been disclosed.
Why dismissal was upheld
The tribunal was entitled to find that dismissal fell within the range of reasonable responses. Her refusal to recognise the need for disclosure informed its view of whether she could continue in the role.
Lady Hale agreed that there was a breach of contract. Disclosure would have allowed a serious discussion about avoiding the risks, and there was no reason to think that it would have been a resigning matter. She identified the absence of that discussion, and of any acknowledgement of what should have been done, as the real concern:
It is the absence of that full and frank disclosure and discussion which was the cause for serious concern. And it is the absence of any acknowledgement of what she should have done which makes the decision to dismiss her reasonable, indeed some might think it inevitable.
Points not decided
Lady Hale said that the appeal might have raised two questions of general public importance, but that neither had been argued. The first was whether conduct can justify a fair dismissal if it is not a breach of contract, or can amount to some other substantial reason justifying dismissal. The Court had been asked only whether a duty to disclose existed, and it clearly did. The second was whether the Burchell approach, endorsed by the Court of Appeal in Foley v Post Office, is correct. She noted reasons for leaving it undisturbed, including its long use and the fact that Parliament had not changed it, but expressed no view on whether it is correct. She said that the law remains as it has been for the last 40 years.
Verdict: The Court unanimously dismissed the head teacher’s appeal. The tribunal’s finding of procedural unfairness stood, alongside its finding that the employer had substantive grounds to dismiss. The compensation findings were undisturbed.
Source: Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16
