Reilly v Sandwell Metropolitan Borough Council

The Supreme Court dismissed the appeal and held that the claimant, a head teacher, was under a contractual duty to inform the governing body of her close relationship with a person convicted of making indecent images of children. That non-disclosure was a sufficient reason related to her conduct under section 98 of the Employment Rights Act 1996 and the tribunal was entitled to find that dismissal fell within the range of reasonable responses. The court considered the head teacher’s duty in light of section 175(2) of the Education Act 2002 and the governors’ responsibility for safeguarding pupils.

The tribunal’s finding of procedural unfairness on the appeal hearing was upheld as a procedural point but, applying Polkey principles, the tribunal had been entitled to reduce compensation and to treat the claimant as having contributed to her dismissal under section 123(6) of the Employment Rights Act 1996. The court also discussed the longstanding application of the Burchell tripartite approach to misconduct cases but did not change the established approach.

Background and parties: The claimant, Ms Reilly, was appointed head teacher of a maintained primary school. She had a close, non-sexual relationship with Mr Selwood, who was convicted of making indecent images of children. Ms Reilly did not disclose his arrest or conviction to the school governing body or to the local authority which maintained the school (Sandwell). When Sandwell learned of the conviction and of the relationship it suspended and then summarily dismissed her for gross misconduct arising from failure to disclose a matter relevant to safeguarding.

Procedural history: The claimant presented an unfair dismissal claim to the Employment Tribunal. The tribunal found the substantive dismissal to be within the range of reasonable responses but held that the appeal panel’s hearing was procedurally unfair and reduced compensation by 90% under the Polkey principle; it also found contributory fault under section 123(6). The Employment Appeal Tribunal dismissed the claimant’s appeal. The Court of Appeal, by majority, dismissed the next appeal. The case came to the Supreme Court on the final appeal.

Nature of claim and issues: The claim was for unfair dismissal. The principal issues framed were (i) whether Ms Reilly owed a contractual duty to disclose her relationship with a convicted sex offender to the governing body and (ii) whether, on the facts and in law under section 98(4) of the Employment Rights Act 1996, dismissal was within the range of reasonable responses. The tribunal’s procedural finding and its application of Polkey and section 123(6) were also referenced.

Court’s reasoning: The court held that Ms Reilly’s contractual duties, including those to "advise, assist and inform" the governing body and to be accountable for pupil safety, engaged the governing body’s safeguarding functions under section 175(2) of the Education Act 2002. Given Mr Selwood’s conviction and the head teacher’s position of knowledge and potential ability to facilitate access to pupils, the non-disclosure required assessment by the governors. The tribunal was entitled to accept the disciplinary panel’s conclusion that non-disclosure was misconduct justifying dismissal and to find that her continued refusal to accept wrongdoing showed lack of insight making continuation inappropriate. The court affirmed the tribunal’s role in applying the range of reasonable responses standard under section 98(4). It also noted the established use of the Burchell test in misconduct cases and declined to depart from that long-standing approach.

Other findings and context: The tribunal had found procedural unfairness in the appeal hearing but concluded that, even if procedurally fair, dismissal would likely have been upheld and reduced compensation accordingly. The Supreme Court dismissed the appeal and declined to reconsider the Burchell approach or to alter the established approach to tribunals’ review of employers’ disciplinary decisions.

Appeal dismissed. The Supreme Court held that the head teacher had a contractual duty to inform the governing body of her relationship with a convicted sex offender (in light of her contractual duties to assist governors and the safeguarding duty in section 175(2) Education Act 2002), and that the tribunal was entitled to conclude that the employer’s decision to dismiss fell within the range of reasonable responses. The court upheld the tribunal’s substantive conclusion and its approach to reduction of compensation and contributory conduct.

Employment Tribunal determination (disseminated 2 November 2012) that, substantively, dismissal was within the range of reasonable responses but there was procedural unfairness and a Polkey reduction; Employment Appeal Tribunal dismissed the claimant's appeal (20 February 2014); Court of Appeal (majority) dismissed the appeal [2016] EWCA Civ 766, [2016] IRLR 779; Supreme Court appeal dismissed [2018] UKSC 16.