18 April 2018
Assessing whether or not a dismissal is unfair under s98 Employment Rights Act 1996 (ERA) involves a tribunal's inquiry as to whether the employer has shown:
In Ms Reilly's case, the Supreme Court had to consider whether an employment tribunal was entitled to find that a school had acted reasonably or not when dismissing a head teacher. This was in circumstance where she had not disclosed to the governing body of her school her association with a person who had been convicted of making indecent images of children.
Ms Reilly was the head teacher of a primary school and in a close, but not sexual, relationship with Mr Selwood. They did not live together although jointly owned a house. Mr Selwood was convicted of making indecent images of children, sentenced to a community order and a sexual offences prevention order forbidding him from having unsupervised access to children under 18. Although Ms Reilly had previously been unaware of his criminal activities, when she did become aware of his conviction she decided not to disclose it to the governing body of the school in the following months or indeed to Mr Sandwell and her close friendship with him continued.
When Ms Reilly's employer (Sandwell) learned of Mr Selwood's conviction and of her close relationship with him it suspended her on full pay. She was asked to attend a disciplinary hearing to answer an allegation that, in having failed to disclose her relationship with a man convicted of sexual offences towards children, she had committed a serious breach of an implied term of her contract of employment, which amounted to gross misconduct.
At the disciplinary hearing the panel upheld the allegation and, particularly in the light of her continuing refusal to accept that her relationship with Mr Selwood might pose a risk to pupils at the school and that her failure to disclose it had been wrong, it decided that she should be summarily dismissed. Her subsequent appeal was dismissed and she claimed unfair dismissal in the employment tribunal arguing that she had been under no duty to disclose the information. The employment tribunal found that the decision to dismiss her was not unfair and that the reason for Sandwell's dismissal of Ms Reilly was that:
Ms Reilly's appeals to the EAT and the Court of Appeal were unsuccessful.
The Supreme Court unanimously dismissed the appeal. It was reasonable for the school disciplinary panel to conclude that Ms Reilly's non-disclosure of her friendship with someone convicted of making indecent images of children not only amounted to a breach of duty, but also merited her dismissal. She was contractually obliged to assist the governing body in discharging its duty to safeguard the pupils, and the question was whether her relationship with engaged the governing body’s safeguarding functions.
The Court considered that the school had shown the fair reason for Ms Reilly's dismissal i.e. non-disclosure, and that it related to her conduct and was within a range of reasonable responses.
In reaching its decision, the court commented on whether existing unfair dismissal case law was correct.
Although one of the judge's views was that had Ms Reilly disclosed her relationship to the school "it is highly unlikely that she would have been dismissed, still less that a tribunal would have upheld any dismissal was fair" in practice it is clear that employees who are responsible for children or vulnerable adults have broad obligations to positively make disclosures if they have safeguarding concerns and failure to do so can provide reasonable grounds to dismiss.
This case amplifies the need to ensure that organisations have in place clear safeguarding processes, that these are communicated to staff and failure to comply with them are included as examples of misconduct in disciplinary procedures.
The employment tribunal did find that the way in which Ms Reilly's appeal hearing was conducted was so unsatisfactory as to render her dismissal procedurally unfair. However it concluded that had the hearing been satisfactory, there was a 90% chance that her appeal would still have been dismissed so it directed that her compensation be reduced by 90% but also that because it concluded that she had contributed to her dismissal by blameworthy conduct it assessed her contribution at 100%.
The Burchell test
In this case the court did not interfere with the use of the Burchell test. Lady Hale raised an issue as to whether a dismissal based on an employee's "conduct" can ever be fair if that conduct is not in breach of the employee's contract of employment by which it is believed she meant that Ms Reilly's contract did not have an express requirement to disclose her relationship to the school governors. However she did clarify that "the law remains as it has been for the last 40 years and I express no views about whether that is correct" so it remains to be seen whether the BHS v Burchell test is challenged in the future.