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Fair dismissal of headteacher for failing to disclose relationship with sex offender

In A v B Local Authority and Another [2016] EWCA Civ 766 the Court of Appeal has upheld a tribunal’s decision that a headteacher was fairly dismissed for failing to disclose her relationship with a sex offender. The school was maintained by the local authority and had a governing body.

The headteacher (A) was in a relationship with a man who was convicted of making indecent images of children in February 2010 and placed on the sex offender’s register. A did not live with the man.

Following advice sought from third parties, A took the view that she was not obliged to disclose her relationship to the governing body. The governing body became aware of the relationship and instiged an investigation resulting in A’s summarily dismissal for gross misconduct. The governing body cited the fact that it should have been apparent to A that she needed to disclose her relationship, particularly once he was convicted; the headteacher was duty bound to assist the governing body in safeguarding the school’s children’ and had failed to change her position or acknowledge her error in failing to disclose.

A bought a claim in the employment tribunal (ET) for unfair dismissal and sex discrimination. Her sex discrimination claim was later dropped. The ET held that the dismissal was unfair following shortcomings in the appeal process but it went on to say that, even if the governing body had followed a fair process, there was a 90% chance that A would have been dismissed anyway and that she had contributed towards her dismissal by 100%. The reasons given were that it was obvious that such a failure to disclose, by a headteacher, irrespective of her contractual terms amounted to misconduct; she had sought advice and therefore must have been aware of the importance of such information being disclosed; and that dismissal was in the range of reasonable responses bearing in mind her position and her failure to acknowledge her error of judgment.

She appealed to the employment appeal tribunal (EAT). The EAT dismissed her appeal.

A appealed the EAT’s decision to the Court of Appeal. The Court of Appeal upheld, by majority, the employment tribunal’s decision that the governing body had fairly dismissed. The school was not required to demonstrate what risk might arise. It was enough for the school to demonstrate that a situation might arise where a risk could occur. On the facts of this case, it was necessary for A to disclose her relationship to the governing body so that it could consider what steps were required to protect the pupils in line with its safeguarding obligations.

The Judgment does not provide any useful guidance on the obligations of a governing body in relation to safeguarding but there appears to now be a much broader interpretation of the safeguarding duty which applies to teachers. The question to be determined by the Courts is. on the basis of the information of the association, whether there is a reasonable belief that there may be a greater risk to the pupils.

This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publicising. QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek legal advice on your situation.

If you have any questions or would like to discuss a matter further please do not hesitate to contact us on knightpolson@qualitysolicitors.com  or 023 8064 4822.

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