Fair Dismissal of Primary School Principal for Failure to Disclose Relationship

14 September 2016

Maxine Orr, Partner, considers a recent case whereby a Head Teacher was dismissed after failing to notify the school at which she was working of her association with a convicted sex offender

Fair Dismissal of Primary School Principal for Failure to Disclose Relationship

*The names of the parties to this case were anonymised to protect the teacher and the school and the case is reported as A v B Local Authority and another.

A was employed as head teacher in a primary school in 2009 after 23 years teaching in other schools without blemish.   Since 1998 she had had an on-going relationship with IS – a convicted sex offender.   They had purchased a house together as an investment with a joint bank account to service the mortgage and had been on holiday together.  She did not live with IS but would sometimes have stayed overnight in his home and she was a named driver on his car insurance.  Whilst the court held that they were not romantically attached it found that the relationship was “more than a mere financial one”.

IS was arrested, cautioned and bailed in February 2009 on the grounds that he was suspected of having viewed online indecent images of children. A was in the house when he was arrested in the early hours of the morning, but it is accepted that she had known nothing about these activities. IS was convicted of making indecent images of children on 1 February 2010. He was sentenced to a three-year community order and was made subject to a Sexual Offences Prevention Order which included a provision forbidding him to have unsupervised access to children under 18.

A had sought advice from a number of sources, police officer, probation officer, the Criminal Record Bureau and governors at other schools as to whether she should disclose her relationship with IS and his offence to the school and from this advice she understood that there was no necessity to do so.  When the school became aware of the relationship, A was subject to the disciplinary process and was summarily dismissed for gross misconduct.   The reasons given by the school were that she “showed a lack of understanding both of the concerns of the governors and the potential risk posed to the children in her care” and “her failure to recant led the school and governing body to believe that dismissal was the only appropriate sanction”.  She brought Tribunal proceedings for unfair dismissal and sex discrimination.

The Tribunal held that although there were deficiencies in the internal appeal process and this rendered the dismissal technically unfair, there was a 90% chance that she would have been dismissed in any event and furthermore she contributed to the dismissal herself therefore it made a 100% in any compensation due.  The Tribunal accepted that the contract of employment did not expressly require disclosure, however stated that “it was obvious that failing to disclose was misconduct”.  A appealed and the EAT dismissed her appeal.  She appealed further to the Court of Appeal and by a 2-1 majority it was decided that the dismissal was fair as there was an obligation to disclose as A’s association with IS did pose a risk to the children and she therefore had a duty to inform the school of it so that steps could be taken to protect them. 

A’s failure to accept at any time during the process that she had acted improperly made the matter more serious in the eyes of the disciplinary panel.

Employers with concerns should always seek professional legal advice before dismissing any employee to avoid costly and lengthy court proceedings.

Maxine Orr is a Partner in Worthingtons Commercial Solicitors specialising in Employment Law.

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