In order to decide whether a dismissal is unfair, tribunals have to ascertain whether the employer acted reasonably when deciding whether the reason warranted dismissal, among other things. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court held that the tribunal had been entitled to find that non-disclosure by a headteacher of her relationship with a convicted sex offender not only amounted to a breach of duty, but also merited her dismissal.
Ms Reilly, the head teacher of a primary school, was the close friend of a man, Mr Selwood, who was convicted in February 2010 of making indecent images of children by downloading them onto his computer. Although Ms Reilly was immediately aware of his conviction, she did not disclose it to the governing body of the school. Her close friendship with him continued and in April 2010 they went on holiday together. In June 2010, the local authority became aware of Mr Selwood’s conviction and of Ms Reilly’s friendship with him.
As a result, Ms Reilly was suspended and subsequently summarily dismissed for a serious breach of an implied term of her contract of employment which amounted to gross misconduct. The disciplinary panel was particularly concerned by her continuing refusal to accept that her relationship with Mr Selwood might pose a risk to pupils and the school, and that she should therefore have disclosed it to the governors.
Ms Reilly brought claims of unfair dismissal and sex discrimination, maintaining that she did not have an obligation to disclose the information.
Decisions of lower courts
The tribunal held that, apart from an irrelevant procedural element, the decision to dismiss her had not been unfair. Likewise it rejected her claim of sex discrimination. She then lost her appeals to both the Employment Appeal Tribunal and the Court of Appeal on the unfair dismissal point.
Section 98 of the Employment Rights Act requires an employer to show (i) that there is a reason for the dismissal; (ii) that that reason relates to the employee’s conduct; and (iii) that they acted reasonably in treating the reason as sufficient for the dismissal.
Decision of Supreme Court
The Supreme Court agreed with the decisions of the lower courts, holding that Ms Reilly breached her contract of employment by failing to inform her employers of her connection with a man who had recently been convicted of a serious sexual offence and who was considered to represent a danger to children.
Firstly, her job description included a requirement to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” and to “be accountable to the Governing Body for the maintenance of … the … safety of all … pupils”. She was therefore, as she accepted, under a contractual duty to assist the governing body in discharging its duty to exercise its functions with a view to safeguarding the pupils. Even the disciplinary provisions in her contract of employment identified a failure to report something which it was her duty to report as being an example of conduct which might lead to disciplinary action.
Secondly, as head teacher, she was likely to know important information about her pupils, including their whereabouts, their routine and their circumstances at home. She was also likely to be able to authorise visitors to enter the school premises. Her relationship with Mr Selwood therefore presented a potential risk to those children, but it was a risk which the governors needed to assess, not Ms Reilly.
Given these circumstances, the tribunal was entitled to find that it was a reasonable response for the disciplinary panel to have concluded that Ms Reilly’s non-disclosure of her relationship with Mr Selwood not only amounted to a breach of duty, but also merited her dismissal. Ms Reilly’s continuing refusal to accept that she had been in breach of her duty suggested a lack of insight which, it was reasonable to conclude, rendered it inappropriate for her to continue to run the school.