Guilty by Association - considerations when dismissing an employee

Article

21 September, 2016

Unfortunately we are all too familiar with the revelations which frequent our television screens and newspapers which concern employees working with children who have unsettling previous convictions which they have failed to disclose and which have slipped under the radar.

Clearly schools and their governing bodies must remain vigilant and aware of the risks which are presented in the protection of children. It is clearly the case that an individual with convictions relating to child abuse is unable to work within a school or in the vicinity of children. However, the issue is slightly less straightforward when the employee of the school has not committed an offence themselves but a person with whom they are associated with personally has.

Under the Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 staff engaged in the provision of certain categories of childcare must disclose whether they live with anyone holding a relevant criminal conviction which includes sexual and violent offences against both children and adults. The Department of Education Statutory Guidance states that schools are responsible for ensuring that staff are made aware of the relevant legislation and that they may be disqualified 'by association' under regulation 9 of the 2009 Regulations where they live in the same household as a disqualified person. There is understandably concern around the scope and application of these Regulations and two recent cases, although not covered by the Disqualification Regulations directly, provide some indication as to the potential application of such.

Dismissal for failing to Disclose

The case of A v B and another [2016] EWCA Civ 766 concerns a case where the Court of Appeal upheld a tribunal's decision that a head teacher had been fairly dismissed for failing to disclose her relationship with a man convicted of making indecent images of children. The head teacher in this case was not romantically involved with the man in question, but did have a close personal relationship with him - they had jointly invested in a house and had been on holiday together. This considerably broadens the notion of 'relationship' beyond that of a romantic personal relationship. Clearly such a judgement is subject to emotive factors, however unfortunately the decision did not seem to provide any clear decisive factors which can be used to determine when a relationship ought to be disclosed. The Disqualification Regulations were not directly applicable to the Claimant in this case, however they were considered when demonstrating how concerned the law is about relationships between teachers and sex offenders

It is worth noting that in this case, Elias EJ in expressed concern over the concept that a mere association with an offender could create a presumption of an enhanced risk. This is undoubtedly an issue in which clarity is needed to provide determinative factors for disclosure requirements, however taking on board the comments of Elias EJ in this case it would be prudent for schools to articulate their requirements when it comes to the disclosure of personal relationships so that the requirements are clear from the outset and there can be no doubt over whether or not a relationship should have been disclosed and therefore whether a dismissal can be considered fair.

Dismissal for Failing to End Relationship

Another case on this point is Pendleton v Derbyshire County Council (1) The Governing Body of Glebe Junior School (2) which provides for another interesting situation arising from this issue and serves as a warning for schools who dismiss staff because of their association with someone with a conviction. The Claimant, who was a teacher, was dismissed after she refused to end a relationship with her husband who was convicted of sex offences on the basis that her marriage vow was sacrosanct. The Disqualification Regulations did not apply to the Claimant as she did not provide childcare to children under the age of 8 years old.

The Employment Appeals Tribunal held that the school's practice of dismissing someone who had chosen not to end a relationship with a convicted sex offender was indirect religious discrimination. The Claimant had been put at a particular disadvantage by the School's practice of dismissing those in her situation by virtue of her religious belief in the sanctity of marriage and there was no justification for the dismissal.

This case emphasises that although convictions of a partner or other family members may raise concerns and require careful consideration by an employer as to whether there may be a potential risk to children and young people that does not, of itself, give a school the right to dismiss a member of staff before properly examining the extent of that risk. In this case there was never an assertion that the Claimant had been aware of her husband's actions until his arrest. The Respondents were criticised for operating with a closed mind by taking the view that there could be no alternative to dismissal. This lack of flexibility showed that their actions were a disproportionate means of achieving a legitimate aim (safeguarding the children in the school). So employers should ensure they have considered all options available before any disciplinary measures are taken.

Evidently this issue is a difficult and sensitive one. However, both cases emphasise the need for schools to have clear policies as to which relationships are to be disclosed as well as practices which do not disadvantage certain individuals by way of their religious beliefs or any other protected characteristic. It is important to note that in neither of the above cases did the Disqualification Regulations apply directly, and where they do an employer has a legal justification for ending employment. However, even where the Regulations are applicable alternatives can still be considered by employees before dismissing an employee. These include applying to OFSTED for a waiver from disqualification and adjusting the role of the employee so that they are steered away from children under 8 whilst the waiver is considered. It would seem probable that compliance with the Disqualification Regulations is a legitimate aim in that it ensures the safeguarding of children, however we are yet to see a case on this point. It is, however still likely that alternatives must be be explored in order to show a proportionate means of achieving such an aim in order to defend an indirect discrimination claim.

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