A v B Local Authority & Anor

The Court of Appeal considered an appeal from an Employment Tribunal and the Employment Appeal Tribunal about the fairness of a summary dismissal of a head teacher for failing to disclose her close personal relationship with a man convicted of making indecent images of children. Key legal principles applied were section 98 of the Employment Rights Act 1996, the Burchell test for misconduct (reasonable belief on reasonable grounds), the "band of reasonable responses" approach, and the Polkey principle as to deductions for a dismissal that would have occurred in any event.

The Employment Tribunal had held the dismissal was procedurally unfair but, on the facts, would probably have been fair (90% Polkey) and that the claimant had 100% contributory fault. The EAT dismissed the claimant's appeal. In the Court of Appeal a majority concluded the employer had reasonable grounds to believe the head teacher's failure to disclose constituted misconduct given the safeguarding responsibilities of the governing body and that dismissal was within the range of reasonable responses; the appeal was therefore dismissed. A dissenting judgment would have allowed the appeal, finding there was insufficient evidential basis to conclude the relationship posed a potential enhanced risk to children and therefore no duty to disclose was established.

The appellant was a long-serving head teacher who was summarily dismissed after the school learned that she was in a close personal relationship with IS, who had been convicted of making indecent images of children. The disciplinary charge was founded on an alleged failure to disclose information which could put the school at risk and on alleged breaches of trust and confidence. She brought claims for unfair dismissal and sex discrimination (the latter not pursued further).

Procedural history:

• Employment Tribunal: found initial dismissal substantively fair but procedurally flawed on appeal; applied a 90% Polkey reduction and found 100% contributory fault, resulting in no compensation.
• Employment Appeal Tribunal: dismissed the claimant's appeal, upholding the ET's substantive conclusion.
• Court of Appeal: heard appeal; majority dismissed the appeal, one judge would have allowed it.

Issues framed:

• Whether there was a duty on the head teacher to disclose her relationship with IS to the governing body;
• whether the employer had reasonable grounds to form a genuine belief that failure to disclose amounted to gross misconduct (applying the Burchell principles and the band of reasonable responses);
• whether any unfairness in procedure should attract a Polkey deduction and the appropriate reduction for contributory fault; and
• whether Article 8 considerations altered the fairness analysis.

Court’s reasoning: The majority held the employer was entitled to conclude that the association could create at least a potential enhanced risk engaging statutory safeguarding duties and that a head teacher should have disclosed such matters so that the governing body could assess and manage risks; dismissal was within the range of reasonable responses, so the appeal failed. The dissenting judge concluded there was no evidential basis that the relationship created a potential enhanced risk to pupils, so no duty to disclose was established and the dismissal was substantively unfair; in that view the Polkey reduction and contributory-fault findings could not stand.

The judgment also discussed, without treating them as determinative, the Childcare (Disqualification) Regulations 2009 and related statutory provisions to underline the importance of safeguarding, but the regulations were not directly applied to the appellant’s case.

Appeal dismissed by majority. The majority concluded the employer had reasonable grounds to believe that the head teacher’s failure to disclose her relationship with a convicted sex offender could create a potential enhanced risk to children and that dismissal fell within the band of reasonable responses; a dissenting judge would have allowed the appeal because there was insufficient evidence to show an enhanced risk or thereby to impose a duty to disclose.

Employment Tribunal: initial decision finding dismissal procedurally unfair but that there was a 90% chance the dismissal would have been fair and 100% contributory fault (no compensation). Employment Appeal Tribunal (Wilkie J, Baroness Drake of Shene, and Mr P Gammon MBE) UKEAT/40/13/BA: dismissed appellant's appeal. Court of Appeal [2016] EWCA Civ 766: appeal dismissed (majority).