In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court considered whether the failure by Ms Reilly, a headteacher at a maintained primary school, to disclose to the school governors her relationship with someone who had been convicted of making indecent images of children was a sufficient reason for her dismissal.
Facts
Ms Reilly was appointed as headteacher in 2009. In early 2010, her friend, with whom she had bought a house as an investment and had gone on holiday, was convicted of making indecent images of children and forbidden from having unsupervised access to children under 18. Ms Reilly was not in a romantic relationship with him and they did not live together. Ms Reilly sought advice from various people before deciding not to disclose to the school her relationship with her friend and his offence, as she understood that it was not necessary.
When the school became aware of her friendship and her friend’s conviction, it dismissed her for gross misconduct on the basis that, given her key role in child safeguarding and protection, she should have known that any concern in this regard should be disclosed. In addition, her ‘failure to recant’ led the school and governing body to decide that dismissal was the only appropriate sanction.
Ms Reilly claimed unfair dismissal but the employment tribunal found that her dismissal was within the range of reasonable responses open to the school. Whilst there were deficiencies in the appeal process that made her dismissal technically unfair, she was not entitled to any compensation as there was a 90% chance of dismissal if a fair procedure were followed and, in any event, she had contributed 100% to her dismissal.
Decision
Ms Reilly appealed unsuccessfully to the EAT, Court of Appeal and then to the Supreme Court which dismissed her appeal. The Court thought that Parliament has recognised in the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 (see below) that offenders can represent a danger to children both directly and indirectly by operating through those with whom they associate. Her friend was the subject of a recent conviction and his sentence indicated that he was a danger to children. As headteacher, Ms Reilly was likely to know important information about her pupils, including their whereabouts, routines and circumstances at home, and was also likely to be able to authorise visitors to enter the school. Their friendship therefore created a potential risk to the children at the school, which required the assessment of the governors. Ms Reilly’s failure to disclose prevented them from having a full and frank discussion about how risks to the pupils might be avoided.
Therefore, the Supreme Court ruled that the employment tribunal was right in concluding that it was reasonable for the school to dismiss her.
Implications
This case highlights the importance of the duty to safeguard pupils in relation to the risks posed not just by offenders themselves but also through others in contact with them. This is particularly the case in schools providing early and/or later years childcare outside of normal school hours, that are covered by the Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 (e.g. schools that have pre-school or after-school clubs for children up to the age of 8).
Safeguarding policies in such schools should already ideally ask staff providing or managing early and/or later years childcare to notify the school if they become disqualified under the 2009 regulations (typically where they, or a person they live with, have committed certain sexual or violent offences). In the light of the Supreme Court’s decision, schools may wish to go further and consider updating their safeguarding policies to ask staff to disclose any relationships with people who may be disqualified under the 2009 Regulations.
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