On 14 March 2018, in the case of Reilly v Sandwell MBC, the Supreme Court held that a school was entitled to dismiss a head teacher who failed to disclose her close relationship with a convicted sex offender.

Facts of the Case:

  • Ms Reilly, the head teacher of a primary school, had a close relationship (although not romantic) with Mr Selwood, who was convicted of making indecent images of children by downloading them onto his computer. Selwood was arrested before Reilly was appointed as head teacher in September 2009. However, after her appointment, Selwood was convicted and—despite being present at the arrest—Reilly failed to disclose any information surrounding their association.
  • Reilly met Selwood in 1998, and they became close friends. In 2003, they bought a property as an investment in their joint names and set up a joint bank account in order to pay their mortgage instalments. Selwood lived at the property, and Reilly sometimes stayed overnight. On 24 February 2009, she witnessed Selwood's arrest on suspicion of having downloaded indecent images of children online.
  • When the local authority discovered the conviction and Reilly's close relationship with Selwood in June 2010, the school suspended her and invited her to a disciplinary hearing. The disciplinary panel found that Reilly's failure to disclose her relationship with Selwood was a serious breach of a contractual term of her employment that amounted to gross misconduct.
  • Reilly continued to deny that she had any duty to disclose the information or that her relationship with Selwood would have put the school children at risk. The school summarily dismissed Reilly for gross misconduct and considered her failure to accept that she had acted wrongfully meant that her dismissal was the only appropriate action.

Judgment of the Employment Tribunal

Following an unsuccessful internal appeal, Reilly brought an unfair dismissal claim in an employment tribunal, arguing that she did not have a duty to disclose the relationship. The employment tribunal found that the dismissal was procedurally unfair but applied a 90% "Polkey deduction" to any compensation and reduced it by 100% for contributory fault. A Polkey deduction reflects the chance that although a dismissal may have been procedurally unfair, it would have probably happened anyway. The Employment Appeal Tribunal and the Court of Appeal of England and Wales both dismissed Reilly's subsequent claims.

Judgment of the Supreme Court

The Supreme Court has now also dismissed Reilly's appeal. The Court held that she had a "contractual duty to assist the [school's] governing body in discharging its duty... to safeguarding the pupils". The Court focused on whether the employer acted reasonably in treating the reason to dismiss as sufficient. As Reilly's relationship with Selwood caused a potential risk to her pupils due to the fact that she held information about her students and could authorise visitors to enter the school premises, this was a risk that the governing board should have been able to assess. Therefore, according to the court, Reilly's failure to disclose her relationship was a breach of her duty and merited her dismissal. Furthermore, the Supreme Court held that the decision to dismiss Reilly was reasonable given her continuing failure to acknowledge that she had been in breach of her duty.

It is interesting to note that in the Court's judgment, had Reilly disclosed her relationship to the school, "it is highly unlikely that she would have been dismissed, still less that the tribunal would have upheld any dismissal as fair." The Court explained that if Reilly had made a promise not to give Selwood access to the school and had ensured that he would not have access to any records, this would have sufficed.

Key points to note from this case

The irony of this case is that, had Reilly disclosed her relationship with Selwood from the start, she would probably not have lost her job. It was helpful to the employer's case that Reilly's contract of employment had set out duties relating to assisting the governing body regarding the safety of pupils. Learning points from this case are that if there are any specific criteria that are significant to an employee's role, then the employer may want to specify them in contractual documentation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.