Can an employee be fairly dismissed for failing to disclose a relationship with a sex offender?

In this recent case decided by the Court of Appeal another very sensitive issue was considered and the reasonableness of a dismissal analysed in an unfair dismissal case where the employee failed to disclose the conduct of someone associated with her.

The Law

In order to fairly dismiss an employee an employer must have one of five potentially fair reasons for dismissal.

One the potentially fair reasons for dismissal, and the reason relied on in this case, is misconduct.

It is however not sufficient merely to show the reason for dismissal but also that a dismissal for that reason is fair.

In order to establish if a dismissal for a misconduct reason is fair an Employment Tribunal will consider whether in the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee.

The Employment Tribunal shall determine this question in accordance with equity and the substantial merits of the case.

A three stage test for reasonableness has been established via previous cases so that a dismissal for misconduct will only be fair if, at the time of dismissal:

1. The employer believed the employee to be guilty of misconduct.
2. The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
3. At the time the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.

After establishing this the Employment Tribunal will then look at whether the decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.

It is therefore not as simple as finding misconduct and then dismissing; an employer will need to consider all of the circumstances and whether it is reasonable to dismiss.

Childcare Regulations

This case involves a Headteacher and therefore there are various Childcare Regulations which were also applicable to her employment, including

• The Childcare Act 2006 (2006 Act)
• Childcare (Disqualification) Regulations 2009 (2009 Regulations)

These regulations require certain childcare providers, and those who manage providers to be registered.

There is also a list of persons who are disqualified from working with children or managing childcare providers including someone who has committed sexual offences and offences against children. What many people may not realise is that the regulations also disqualify a person who lives in the same household as a disqualified person.

The Facts

Because of the nature of the issues in this case the parties remained anonymous and are referred to A v B and another. A was a Head teacher at a primary school and had been teaching with a unblemished record for 23 years. In 2009 she was appointed as Head teacher.

A was in a relationship with IS whom she had known since 1998, and in 2003 she purchased a house with IS as an investment. IS lived in the property and A would stay with him on occasion. They went on holiday together in April 2010 and the evidence of their relationship showed that although they were not partners they were more than just in a financial relationship.

In February 2009 IS was arrested, cautioned and bailed on suspicion of viewing indecent images of children. A had been present in the early hours of the morning when IS was arrested so was aware of his arrest, however there was no suggestion she had been aware of his activities.

On the 1st February 2010 IS was convicted and sentenced for making indecent images of children, he was also forbidden from having access to children under 18.

The Local Authority Designated Officer informed A’s school about the issue with IS and claimed that A was living with IS. The school governors investigated the situation and allegations of gross misconduct were put to A.

A stated that she had made numerous enquiries with the police, probation, CRB, other school governors and local authority about whether she would be under an obligation to disclose her relationship with IS to the school and that she had been informed that this was not necessary by all concerned. A had not however discussed with her own local authority or school governors.

Evidence had been obtained from several people A alleged she discussed the issue with and the account of the conversation was different to that given by A.

The school disciplinary panel decided to dismiss A and the reasons were summarised later at the Employment Tribunal as follows:

“… [Mr Griffin] was able on the basis of the facts which he considered had been presented to him to conclude that it should have been obvious to [A] that she needed to disclose information such as her friendship with IS to the Governing Body once it was clear that he was to be charged and convicted of a child sex offence and that the claimant was guilty of gross misconduct. Her role was that of a head teacher and was to assist the governing body in discharging its functions, one of which was the safeguarding and child protection. He concluded that she should have and would have known safeguarding and child protection were key issues for a governing body and any concerns or issues no matter how small which impacted on those issues should be disclosed. Had the claimant accepted her error, Mr Griffin would have considered an alternative sanction to dismissal. However in the absence of any change of position, he decided that, having had due regard to her hitherto blameless disciplinary record, dismissal was the appropriate sanction.”

A appealed against the decision and her appeal was unsuccessful.

A made a claim in the Employment Tribunal for unfair dismissal which was unsuccessful and her claim eventually reached the Court of Appeal.

The Decision

At appeal A argued that the Employment Tribunal had failed to identify what gave rise to her duty to disclose her relationship to IS and his conviction; that her failure to disclose had not placed the school or children at risk or even potentially at risk; and therefore there was no reason A should have appreciated that disclosure to governors may have been required.

She also argued that by compelling her to disclose her relationship with IS to her employers it was a breach of her Article 8 Human Rights, right to private life.

The Court of Appeal agreed with the Employment Tribunal (and Employment Appeal Tribunal) and upheld the decision that it was fair to dismiss A for her failure to disclose her relationship with IS and his convictions.

The fact that A had safeguarding responsibilities for children at the school as the Head teacher and she had not disclosed the issue was a serious issue of misconduct.

Two of the judges at the Court of Appeal were satisfied that there was a potential serious risk by reason of A’s relationship with IS and that her failure to recognise and disclose the risk gave rise to a fair reason for her dismissal.

An interesting point to note from the judgement is that one of the judges disagreed with the majority judgement as he was not satisfied that there was an enhanced risk to children by A’s relationship.

Points to note

What is interesting to note here is, the Court accepted that the childcare regulations (referred to above) did not expressly cover the situation between A and IS as they were not cohabiting. This led to interesting discussion and reflection by the Judges as to the extent of risk to children in a situation such as this.

It is also interesting to note that if A had disclosed her relationship with IS and his convictions to the school governors then it is unlikely she would have been dismissed.

Action to take

1. If there are specific issues that concern your business which you require employees to disclose it is important to expressly include in your contracts or staff handbook;

2. You must ensure that any disclosures of sensitive personal information are handled carefully and that any duty to disclose is not too onerous;

3. If you have a sensitive situation that arises with your employees or you have to deal with a misconduct dismissal, then please seek specialist advice in advance of taking action.

You can contact me on 01983 897003 or 023 8098 2006 for a no-obligation confidential discussion.

A v B and another – Court of Appeal