A v B & Anor (Unfair Dismissal)

In an unfair-dismissal claim, the tribunal must assess the reasonableness of the employer’s conduct, rather than decide for itself whether misconduct occurred. It must not substitute its own view where dismissal was within the range of reasonable responses.

A headteacher’s responsibility to advise, assist and inform the governing body on matters relevant to safeguarding may entail a duty to disclose a relationship with a person convicted of child sex offences. An employer may reasonably regard a continuing failure to recognise that duty as gross misconduct, despite previous good service, where the employee had reason to appreciate the safeguarding implications.

The claimant, a primary-school headteacher, was dismissed after failing to disclose to the governing body her relationship with a man convicted of child sex offences. The Employment Tribunal found that the initial dismissal decision was fair, but held the dismissal unfair because the internal appeal process was deficient.

The Tribunal applied a 90% Polkey reduction and found 100% contributory fault. The claimant appealed against those conclusions, contending principally that there was no sufficiently articulated duty to disclose and that the dismissal decision was unreasonable. She also relied on Article 8 of the European Convention on Human Rights.

1. Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had been entitled to find that the initial decision to dismiss was one which a reasonable employer could make.

2. The alleged misconduct had been sufficiently identified. The disciplinary rules treated a failure to report a matter which the employee was duty-bound to report as potentially serious misconduct. The headteacher’s role required her to advise, assist and inform the governing body in the discharge of its safeguarding responsibilities.

3. The Employment Tribunal was entitled to find that the employer had a genuine and reasonable belief that the claimant had failed to disclose material information. Her enquiries about disclosure, the advice from probation officers, and her awareness of possible disclosure to the governing body were capable of supporting the conclusion that she knew, or ought to have known, of the obligation to disclose.

4. The Tribunal was also entitled to conclude that dismissal fell within the range of reasonable responses. The decision reflected both the safeguarding context and the claimant’s continued inability to acknowledge the disclosure obligation. Her previously unblemished record did not make that conclusion perverse.

5. The Article 8 argument was admitted formally but added nothing material to the principal ground. As the challenge to the initial dismissal failed, the challenges to the Polkey reduction and the finding of contribution also failed. The Employment Tribunal’s finding of unfair dismissal, confined to defects in the appeal process, remained; remedy was to be dealt with by that Tribunal.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the Employment Tribunal’s conclusion that the initial dismissal decision was fair. The finding that the dismissal was unfair because of defects in the internal appeal process remained, subject to the Tribunal’s remedy determination.
• Employment Tribunal: found the claimant unfairly dismissed because of deficiencies in the appeal procedure, but held that the original dismissal decision would have been fair. It applied a 90% Polkey reduction and found 100% contributory fault.