The Supreme Court recently considered whether it was fair to dismiss a head teacher who failed to disclose her relationship with a convicted sex offender. In doing so the highest court in the UK appeared to question familiar case law on misconduct dismissal which has governed such cases for many decades.

Facts of the case 

The case of Reilly v Sandwell Metropolitan Borough Council (previously known as A v B) concerned Ms Reilly, the former head teacher of a primary school. Ms Reilly was dismissed for misconduct after failing to disclose that she had a close personal relationship (although it was not a sexual relationship and they did not live together) with a man convicted of making indecent images of children. Ms Reilly became aware of the man’s conviction but decided not to tell the school’s governing body about the relationship. When the local authority found out, she was dismissed.

Ms Reilly brought a claim of unfair dismissal to employment tribunal. Her claim was dismissed, as were her appeals to the Employment Appeal Tribunal and the Court of Appeal.

What did the Supreme Court decide?

The Supreme Court agreed with the tribunal’s decision that the school had acted reasonably in dismissing Ms Reilly because, by not disclosing the relationship, she had failed in her duty to “advise, assist and inform” the Governing Body in the fulfilment of its safeguarding responsibilities towards the Schools pupils. As a head teacher, she should have recognised that this was relevant information that should have been given to the school, allowing the governing body to decide for itself how to proceed.

As an interesting side note, the judges appeared to invite future unfair dismissal cases to challenge what’s known as the “Burchell Test”. This long-established test uses three conditions to determine whether an employer’s decision to dismiss was reasonable:

1. The employer genuinely believed the employee was guilty of misconduct.
2. There were reasonable grounds for that belief.
3. The employer had carried out as much investigation as was reasonable under the circumstances.

Some of the judges’ comments appeared to question whether this approach was correct even thought it did not affect the outcome of this case.

Comment

Crucially in this case, Ms Reilly’s job description included responsibilities related to safeguarding children. Because she had failed in these safeguarding duties, the dismissal was held to be reasonable. This highlights the need for clear job descriptions that unambiguously set out crucial responsibilities and expectations.