This case is an unfair dismissal claim that has made its way up to the Supreme Court. The question this week is:
Can dismissing an employee for failure to disclose a relationship with a convicted sex offender be fair?
Reilly v Sandwell Metropolitan Borough Council
Ms Reilly, the Claimant, was the Head Teacher of a primary school governed by Sandwell Borough Council, the Respondent. The Claimant was in a close but non-romantic relationship with Mr Selwood. They owned a house (that Ms Reilly did not reside in), had a joint bank account to pay for the house and went on holiday together.
The Claimant, on occasion, would stay the night at the house she owned with Mr Selwood. On one such occasion he was arrested by police the following morning for downloading indecent pornographic images of children.
Relevant childcare regulations disqualify anyone who wishes to work with children under 8 years old if they are a convicted sex offender. This disqualification can also apply to people who reside with a convicted sex offender or households who employ a convicted sex offender. The reason for this is because offenders can pose an indirect threat to child safety if they are able to gain access to, or information about, children through their close associates (cohabiters/employers).
After Mr Selwood was arrested the Claimant did not tell the Respondent of her relationship with him. After he was convicted of possessing pornographic images children – of which it was found he possessed level 4 indecent images with 5 being the most graphic level – the Claimant did not tell the Respondent about her relationship with him. After Mr Selwood was released the Claimant went on holiday with him and became a named driver on his car insurance policy.
The Respondent subsequently learned of Mr Selwood’s conviction and the Claimant’s relationship with him. She was suspended and ultimately dismissed for a breach of the implied term of trust and confidence due to failure to disclose her relationship with a convicted sex offender which was a safeguarding risk for the children at the school.
Throughout the process the Claimant maintained that she was under no duty to disclose this relationship and she had done nothing wrong. The Respondent believed that Mr Selwood could have learned of the children’s’ routines and personal lives through the Claimant and this posed a significant risk. After a brief and unsuccessful appeal, the Claimant issued ET proceedings for unfair dismissal.
The ET held that, due to the brief appeal process, the dismissal was procedurally unfair. However, it applied a 90% Polkey deduction and 100% Contributory Fault deduction to any award due to the Claimant’s conduct and probability she could have been dismissed fairly. The Claimant appealed unsuccessfully to the EAT and Court of Appeal (CoA) before appealing to the Supreme Court.
The Supreme Court dismissed the appeal. It held that the Claimant’s continued refusal to accept she should have disclosed the relationship together with the failure to disclose showed a lack of insight into child safety. The Respondent’s decision to dismiss was fair.
The Takeaway Point:
Yes, failing to disclose a child safeguarding issue can be a fair reason to dismiss. The fact the Claimant was granted leave to appeal to the highest court in the UK is somewhat surprising as clearly the conduct gave grounds for dismissal.
A wider point is that severe conduct offences can result in minimal or non-existent tribunal awards, even if the dismissal is unfair. In this case, despite a poor disciplinary appeal procedure rendering the dismissal technically unfair, the conduct was so severe that the Claimant’s award was reduced to zero. This makes the unfair dismissal finding a pyrrhic victory.