Reilly v Sandwell Metropolitan Borough Council

An employer may reasonably dismiss a head teacher who fails to disclose a close relationship with a person recently convicted of sexual offences against children. A contractual duty to assist a school’s governing body with safeguarding requires disclosure of information creating a potential risk to pupils, so that the governors can assess and manage that risk.

Under section 98(4) of the Employment Rights Act 1996, the tribunal asks whether dismissal fell within the range of reasonable responses open to the employer. An appellate court may intervene only for an error of law, including a conclusion which the tribunal was not entitled to reach. A continuing failure to recognise the breach and its safeguarding significance may reasonably justify dismissal.

The appellant was the head teacher of a maintained primary school. She had a close, non-sexual relationship with a man who was convicted of making indecent images of children and was prohibited from having unsupervised access to minors. She did not disclose the conviction or relationship to the school’s governing body. The employer summarily dismissed her for gross misconduct, particularly because she continued to deny that disclosure had been required.

The Employment Tribunal found that the substantive dismissal was not unfair, although it found procedural unfairness in the internal appeal. The Employment Appeal Tribunal dismissed her appeal. The Court of Appeal, by a majority, also dismissed her appeal: [2016] EWCA Civ 766, [2016] IRLR 779.

The central issues were whether the appellant was contractually required to disclose the relationship and whether the tribunal was entitled to find dismissal within the range of reasonable responses.

1. The appeal was dismissed unanimously. Lord Wilson delivered the leading judgment, with which Lord Carnwath, Lord Hughes and Lord Hodge agreed. Lady Hale agreed with his reasons for dismissing the appeal.

2. Under section 98(4) of the Employment Rights Act 1996, the tribunal did not decide directly whether it regarded dismissal as fair. It had to decide whether the employer acted reasonably in treating the established reason as sufficient for dismissal. This required consideration of whether dismissal fell within the range of reasonable responses. An appeal from the tribunal lay only on a point of law under section 21(1) of the Employment Tribunals Act 1996. An appellate body could therefore intervene only if the tribunal’s conclusion was not open to it.

3. The appellant’s contractual duties required her to advise, assist and inform the governing body in fulfilling its safeguarding responsibilities. Section 175(2) of the Education Act 2002 required the governing body to arrange for its functions to be exercised with a view to safeguarding and promoting pupils’ welfare. The relationship and conviction created at least a potential risk requiring assessment by the governors. It was not for the appellant to assess that risk for herself.

4. The safeguarding risk could arise indirectly. The childcare registration scheme, particularly regulation 9 of the Children (Disqualification) Regulations 2009, illustrated Parliament’s recognition that sexual offenders against children may operate through close associates who remain unaware of their purpose. A head teacher had extensive information about pupils and substantial ability to facilitate access to school premises.

5. The tribunal was entitled to conclude that non-disclosure breached the appellant’s contractual duty and that dismissal was a reasonable response. Her continuing refusal to acknowledge the breach demonstrated a lack of insight which the employer could reasonably regard as incompatible with continuing responsibility for the school.

6. The court did not determine whether conduct falling outside an employee’s contractual obligations could support a fair dismissal under section 98(2)(b), or constitute some other substantial reason under section 98(1)(b). Nor did it reconsider the correctness of the established Burchell approach. Lady Hale emphasised that the approach remained binding below and expressed no view on whether it was correct.

1. United Kingdom Supreme Court: The appellant’s appeal was dismissed unanimously. The tribunal had been entitled to find that the substantive dismissal was not unfair: [2018] UKSC 16.
2. Court of Appeal: By a majority, Black and Floyd LJJ dismissed the appeal; Elias LJ dissented: [2016] EWCA Civ 766, [2016] IRLR 779.
3. Employment Appeal Tribunal: Wilkie J presiding, the EAT dismissed the appeal from the Employment Tribunal on 20 February 2014.
4. Employment Tribunal: The tribunal held that the dismissal was substantively fair but procedurally unfair. It reduced compensation by 90% for the likelihood that dismissal would have followed a proper appeal and assessed the appellant’s contribution at 100%.