16 March, 2018
Yes, held the Supreme Court in Reilly v Sandwell Metropolitan Borough Council.
Ms Reilly, the head teacher of a primary school, was in a close (but not romantic) relationship with a man convicted of making indecent images of children. Whilst Ms Reilly did not live with the man, they owned a house together, had a joint bank account and went on holiday together. Ms Reilly did not inform the school of either her relationship with the man or his conviction.
The school subsequently found out about the man's conviction, and the close relationship he had with Ms Reilly. Ms Reilly was suspended and later attended a disciplinary hearing to answer an allegation that, in having failed to disclose her relationship with a man convicted of sexual offences towards children, she had committed a serious breach of an implied term of her contract of employment. It followed that she was dismissed for gross misconduct.
The school considered that Ms Reilly should have been aware of the need to notify them of the situation and her failure to accept that she had acted wrongly meant that dismissal was the only appropriate sanction.
Employment Tribunal and subsequent appeals
Ms Reilly brought an unfair dismissal claim against her employer, arguing that she was under no duty to disclose the relationship. The Employment Tribunal found that, whilst there was no express term in Ms Reilly's contract of employment which required her to disclose her relationship, it should have been obvious that she was obligated to do so. Accordingly, the dismissal was within the range of reasonable responses.
Ms Riley's appeals to the EAT and the Court of Appeal were unsuccessful.
Supreme Court decision
The Supreme Court unanimously dismissed Ms Reilly's appeal, holding that she was under a duty to "advise, assist and inform" the school's governing body in fulfilling its safeguarding responsibilities towards its pupils. Those who are guilty of sexual offences against children pose a risk to the safety of other children. Furthermore, Ms Reilly's relationship with the man created a potential risk to the pupils, specifically he may have used his relationship to gain access to the school and/or find out information about the pupils. The Supreme Court held that the absence of a full and frank disclosure was a serious cause for concern. This, coupled with the absence of any acknowledgment of what she should have done made the decision to dismiss reasonable.
Disqualification by Association?
The Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 require certain childcare providers, and those who manage those providers (including headteachers) to be registered in order to provide childcare and expressly disqualify certain people from registration. A disqualified person includes someone who has committed sexual offences and offences against children, but also includes a person who lives in the same household as a disqualified person. As such, the 2006 Act and 2009 Regulations did not disqualify Ms Reilly from being headteacher as she did not live in the same household as the man in question.
However, the court held that the law surrounding disqualification by association demonstrated that Parliament had recognised that sexual offenders towards children could represent a danger to children both directly and indirectly by operating through those with whom the children associated.
The man in question was the subject of a serious, recent conviction which represented a danger to children therefore his relationship with Ms Reilly created a potential risk to children.
Accordingly, the Tribunal had been entitled to find that it was reasonable for the disciplinary panel to have concluded that Ms Reilly's non-disclosure justified her dismissal. The fact that Ms Reilly continued to refuse to accept that should have disclosed the relationship suggested a continuing lack of insight which meant that it was inappropriate for her to continue to run the school and as such dismissal was an appropriate sanction.