Ms Caroline Reilly, was the former head teacher of a primary school, she jointly owned a house with a close friend, Mr Selwood but they were not co-habiting nor in a relationship. In February 2009, Ms Reilly witnessed Mr Selwood being arrested by the police on suspicion of having downloaded indecent images of children and he was subsequently convicted of same in 2010.
It was the school’s position that Ms Reilly had committed a serious breach of an implied term of her contract of employment by failing to disclose her relationship with a convicted sex offender. The school alleged that this amounted to gross misconduct and in particular was concerned by Ms Reilly’s refusal to accept that her relationship with Mr Selwood put the children at the school at risk. Ms Reilly was summarily dismissed and she subsequently brought Tribunal proceedings for unfair dismissal, claiming that she had been under no duty to disclose the information.
An employment tribunal did not uphold Ms Reilly’s claim for unfair dismissal and her appeals to the EAT and the Court of Appeal were also unsuccessful. The Supreme Court unanimously dismissed the Appellant’s appeal holding that the dismissal was within the range of reasonable responses open to the Respondent.
The Court held that as per the Employment Rights Act 1996, the Respondent had demonstrated the reason for Ms Reilly’s dismissal, namely her non-disclosure and that it related to her conduct as a head teacher. The Court therefore had to determine the fairness of the dismissal in light of the ERA 1996 and the test set out in British Home Stores Ltd v Burchell (1978), whether at the time of dismissal, the employer had a genuine belief in the employee's guilt and had reasonable grounds for that belief.
In this case, Ms Reilly was under a contractual obligation to assist the school’s Board of Governors in discharging its duty to safeguard the pupils. The Court found that pursuant to the Childcare Act 2006, Parliament had recognised that sexual offenders can represent a danger to children not only directly but also indirectly by operating through those with whom the children associate.
Lord Wilson at the Supreme Court stated that “the Tribunal had been entitled to find that it was a reasonable response for the Respondent to conclude that Ms Reilly’s non-disclosure amounted to a breach of duty so significant that it merited her dismissal”.
Lady Hale concurred with Lord Wilson’s judgment but highlighted that had the Appellant’s case been argued differently, it may have presented the Court with an opportunity to consider:
1) 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 and;
2) Whether the approach laid down in Burchell is correct.
Lady Hale held that in the absence of argument of these points, the law would remain unchanged. Nevertheless, Lady Hale has arguably indicated that there are grounds to challenge the Burchell test. Employers should always take professional legal advice before taking any decision to dismiss an employee to avoid costly and time consuming litigation.
Maxine Orr is a partner in Worthingtons Commercial Solicitors, Belfast specialising in employment law. She can be contacted on 028 9043 4015 or at firstname.lastname@example.org.