A v B Local Authority & Anor

The majority held that a head teacher must disclose facts which have the potential to create an enhanced risk of harm to pupils, so that the governing body can assess the risk and decide what protective measures are required. The threshold concerns potential risk, not proof that harm will occur. An association with a convicted child sex offender may meet that threshold even where the statutory disqualification regime does not directly apply. The employee cannot reserve the risk assessment to herself. Failure to disclose may constitute misconduct, but dismissal is not automatic: whether it falls within the range of reasonable responses depends on the circumstances, including any continued refusal to acknowledge the obligation.

The appellant, a primary-school head teacher, was summarily dismissed for gross misconduct after failing to disclose her close association with a man convicted of making indecent images of children. The Employment Tribunal found the dismissal substantively fair but procedurally unfair, applied a 90% reduction for the chance that a fair appeal would have produced the same result, and found 100% contributory fault, leaving no compensation.

The Employment Appeal Tribunal dismissed her appeal: UKEAT/40/13/BA. The central issue before the Court of Appeal was whether the evidence justified a reasonable employer treating the failure to disclose as misconduct and dismissal as a reasonable response.

By a majority, the appeal was dismissed. Black LJ and Floyd LJ upheld the conclusion that the dismissal was fair in substance. Elias LJ dissented.

1. Under the Employment Rights Act 1996, the employer had to establish a potentially fair reason and the tribunal had to decide whether, in all the circumstances, the employer acted reasonably in treating it as sufficient. In misconduct cases, the tribunal must assess the employer’s belief, grounds, investigation and choice of sanction without substituting its own view.
2. The majority held that facts known to a head teacher which had the potential to place pupils at enhanced risk of harm had to be disclosed to those responsible for safeguarding. The relevant question was potential enhanced risk, not whether harm would actually occur. The duty existed to enable the governing body to make its own assessment and impose protective measures; the head teacher could not appropriate that decision.
3. Black LJ relied on the safeguarding duty in section 175(2) of the Education Act 2002 and on the wider child-care disqualification scheme in the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009. Although those provisions did not directly apply, they demonstrated the seriousness with which risks arising from association with sexual offenders were treated. Floyd LJ regarded the threshold as low and the association in this case as sufficiently close to cross it.
4. Failure to disclose did not inevitably justify dismissal. The tribunal was entitled to regard dismissal as falling within the range of reasonable responses, taking account of the appellant’s position, the nature of the association, the safeguarding implications, and her continuing failure to acknowledge the obligation when given the opportunity to reconsider.
5. Elias LJ would have allowed the appeal. He considered that there was no evidence from which a reasonable employer could infer an enhanced risk to pupils, and that mere association with a sex offender was insufficient. He would have declared the dismissal unfair, quashed the finding of no compensation and remitted compensation for determination.

• Court of Appeal (Civil Division) — by majority, dismissed the appeal and upheld the Employment Tribunal’s substantive fairness and compensation findings.
• Employment Appeal Tribunal — dismissed the appeal: UKEAT/40/13/BA.
• Employment Tribunal — held that the dismissal was substantively fair but procedurally unfair; applied a 90% Polkey reduction and found 100% contributory fault, resulting in no compensation.