Is it fair to dismiss a school employee for failing to disclose a relationship with a person convicted of serious criminal offence?
Yes, held the Supreme Court, in Reilly v Sandwell Metropolitan Borough Council, whilst also querying the BHS v Burchell test on the reasonableness of a dismissal.
The Claimant was the head teacher of a primary school. She had a close (but non-romantic) relationship with a man who was convicted of making indecent images of children. She knew of his arrest and subsequent conviction but did not disclose these facts to her employer.
Once the School learnt of his conviction and her relationship to him, the head teacher was suspended and subsequently dismissed for failing to disclose these matters, and refusing to accept that this had been wrong of her.
The Claimant brought a claim of unfair dismissal, arguing she was under no duty to disclose the relationship. The tribunal rejected this (and subsequently her appeals to the EAT and Court of Appeal were dismissed). She appealed to the Supreme Court.
The Supreme Court upheld the tribunal's view that the failure to disclose, and the ongoing refusal to accept that she had been wrong, merited dismissal. Lord Wilson noted that the Burchell test was directed more to the reason for dismissal than the issue of reasonableness but did not see that as problematic.
Baroness Hale went further and commented that the case would have been a good opportunity to consider two important employment law issues:-
(1) whether a dismissal could be fair if the alleged misconduct was not, itself, a breach of contract; and,
(2) whether the BHS v Burchell test was the correct legal test when deciding the fairness of a conduct dismissal.
However, since those points had not been raised in argument, she said she would express no view.
Thanks to James English of Hempsons solicitors for preparing this case summary.