Opinion

Vulnerable individuals - when does non-disclosure become misconduct?

14th June 2018

Reilly v Sandwell MBC – dismissal of head teacher where teacher did not disclose relationship of convicted sex offender – band of reasonable responses

Where an employee’s role requires a substantial amount of work alongside children, that employee will be subject to the duty of safeguarding. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court was faced with an appeal from an employee that had been dismissed on the basis of her relationship and association with a convicted sex offender.

Ms Reilly was head teacher of a school based in Sandwell. Whilst employed, she was engaged in a relationship with an individual who had been convicted of downloading indecent images of children. The relationship was neither romantic nor sexual and the individuals were not cohabiting. They did however jointly own a house. Ms Reilly’s partner was known to the police and was the subject of a sexual offences prevention order which prevented him from having any unsupervised access to children under the age of 18.

Ms Reilly decided not to disclose her relationship to either the governing body of the school or the council. When the governing body became aware of the relationship, they suspended Ms Reilly on full pay pending investigation. They then proceeded to invite her to a disciplinary hearing. During the hearing, Ms Reilly stated that she did not believe that having a relationship with such an individual could pose a risk to the children. The disciplinary panel summarily dismissed her.

Ms Reilly brought a claim to the Employment Tribunal (ET) for unfair dismissal. The ET found that the dismissal was fair given that the council held a genuine belief that non disclosure amounted to misconduct. Both the EAT and the Court of Appeal rejected Ms Reilly’s appeal. The Supreme Court also rejected the appeal.

Employer Considerations

This case demonstrates that where employees are working with vulnerable individuals (in this circumstance, children), there is an obligation on them to disclose any personal matters or relationships that could put those vulnerable individuals at risk. The employee in this case had breached a key contractual term (i.e. to protect and safeguard children).

The benefit of this decision for employers is that it tends to suggest that in similar circumstances, employees could be subject to disciplinary sanctions (dismissal) if they fail to disclose such matters. Each case should of course be judged on its own particular circumstances.

 

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