Unfair Dismissal – A Failure to Disclose

In any claim for unfair dismissal, once an employer has shown why an employee was dismissed, they must then go on to prove that the dismissal is ‘fair’. A Tribunal will consider all the circumstances in order to determine whether an employer has acted reasonably in treating that reason as sufficient. It will then consider whether the decision to dismiss fell within the ‘range of reasonable responses’ available to a reasonable employer in those given circumstances.

In a recent case in the Court of Appeal (A v B and another [2016] EWCA Civ 766), the Court had to consider whether a tribunal was entitled to find that a decision to dismiss a headteacher for a failure to disclose her relationship with a sex offender was within the ‘range of reasonable responses’ available to them.

Facts

A had been a headteacher of a primary school since 2009. She had a non-romantic relationship with IS, with whom she had bought a house together and holidayed. In 2010, IS was convicted of child pornographic charges and became subject to a Sexual Offences Prevention Order, preventing him from having unsupervised access to children under 18.

A considered whether she ought to disclose information about her relationship with IS to the school, and she sought advice from a variety of sources including the CRB and other school governors. Overall, she deemed that disclosure would not be necessary.

Subsequently, the school were made aware of the relationship and A was immediately suspended. Following an investigation, A was charged with gross misconduct and dismissed. One of the roles of a headteacher is safeguarding and child protection, and the school’s reasoning behind the dismissal was that her failure to disclose her relationship with IS would put the safety of the children at risk. A also refused to accept her error, and this contributed to her dismissal. Following the dismissal, A brought a claim in the Employment Tribunal for unfair dismissal and discrimination on the grounds of sex.

Decision

The Employment Tribunal (‘ET’) found that the dismissal fell within the range of reasonable responses available to the school, having regard to A’s role, the nature of the information, her relationship with IS, and her failure to recant. She subsequently appealed to the Employment Appeal Tribunal (‘EAT’), and argued that there was no evidence to bolster the claim that she was under a duty to disclose her relationship. She also argued that her right to respect of her private life under Article 8 of the European Convention on Human Rights had been infringed. The EAT agreed with the findings of the ET and dismissed her appeal.  A then appealed to the Court of Appeal.

The Court of Appeal agreed with both Tribunals in dismissing A’s appeal by a majority, with only Elias LJ dissenting. In Black LJ’s view, A’s relationship with IS did pose a risk to the schoolchildren, and she had a duty to inform the school accordingly. A should have realised this herself, given her position as headteacher. It was also a significant factor that the school’s internal disciplinary rules stated that a failure to report any matter which it was a duty to report was an example of conduct which could give rise to action by the school. Floyd LJ largely agreed with his colleague. In particular, he commented that it was not for A to decide whether her relationship with IS gave rise to a risk of harm. The obligation to disclose existed so that the school could evaluate that for itself.

Elias LJ, dissenting, argued that there was no evidence as to what the school’s concerns actually were. He agreed that disclosure is necessary if A’s relationship increases the risk to children’s safety, but there was no evidence to say what this enhanced risk was. He went on to say that ‘we are living in a dangerous world if mere association with a sex offender warrants [the] conclusion’ that there is an enhanced risk to children in situations like this.

Comment

Whilst the judges differed in their views, this case does provide employers and employees with a number of helpful reminders. Anyone that works with or around children or vulnerable adults needs to be aware of the key issues of child protection and safeguarding, and disclose anything about themselves that might lead to an increased risk of harm. Employers may want to consider reviewing their contracts of employment to include broad duties of disclosure to ensure staff are required to disclose anything that may impact on their ability to work with children or vulnerable adults.

However, this case, on the other hand, fails to make clear when the duty to disclose arises, and in what circumstances an employee might be justified in not disclosing this type of information. This may lead employees to disclose information they are not bound to, leaving them exposed to any reaction an employer may take, as well as potential adverse publicity. We will have to wait for further case law in this area before these questions may be answered.

For any questions on the above, please contact your usual member of Devonshires’ Employment Team.

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