Last week’s Supreme Court ruling in the case of Reilly v Sandwell Metropolitan Borough Council represents an important change for teachers and teaching assistants. The case itself concerned employment law, but has important ramifications for dealings with the National College for Teaching and Leadership (NCTL) and Ofsted.
The Supreme Court unanimously dismissed the appeal of Caroline Reilly, a former headteacher who was initially dismissed for not disclosing her friendship with a man who had been convicted of making indecent images of children.
The appeal itself considered whether she had been correctly removed her from her position, as she had not breached her contract of employment.
The Supreme Court ruled that it was reasonable for the school disciplinary panel to have concluded that Ms Reilly’s non-disclosure not only amounted to a breach of duty, but also merited her dismissal.
This decision is likely to be heavily relied upon by the professional bodies in future cases. We are long used to a duty to disclose when close relatives or a partner are convicted of such an offence, but the professional bodies are likely to now expect disclosure if a friend is convicted as well.
In the past, Ofsted has tried to argue that those who have relatives under investigation should have to disclose this, not just those who are convicted. This is an approach rejected by the Care Standards Tribunal, in a case in which we were involved. However, it cannot be doubted that Ofsted in particular is extremely cautious about cases like this.
HOW DID THE CASE GET TO THE SUPREME COURT?
When the school disciplinary panel had removed Ms Reilly from her post in the first instance, they stated that she had committed a serious breach of an implied term of her contract of employment which amounted to gross misconduct.
It was then passed on to an Employment Tribunal. Here, it was decided that, although the dismissal was procedurally unfair – that is, not in direct breach of contractual obligations – Mrs Reilly had been in breach of duty and it would have been inappropriate for her to continue to run the school.
This case was then taken to the Employment Appeals Tribunal and the Court of Appeals, before arriving at the Supreme Court this week.
In lead judgment, Lord Wilson said: ‘It was reasonable for the school disciplinary panel to have concluded that the appellant’s non-disclosure of her friendship with a man convicted of making indecent images of children not only amounted to a breach of duty, but also merited her dismissal.’ Lords Carnwath, Hughes and Hodge agreed.
WHY IS THIS SO SIGNIFICANT?
In her concurring judgement, Lady Hale noted that this case might, if argued differently, have presented an opportunity for the Supreme Court to consider two points of law of general public importance which have not been raised at this level before.
- 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
- Whether the approach laid down by the Employment Appeal Tribunal in British Homes Stores Ltd v Burchell is correct. In the absence of any such argument, however, the law remains unchanged, and Lady Hale expresses no view as to whether that is correct.
Such a discussion might have important consequences for professional tribunals as well.
It is likely that professional bodies will now take the view that their safeguarding duties require them to expect members to disclose when friends are convicted of these types of offences.
As a result, many more professionals are likely to find they need to disclose. It is easy to imagine that there will be many more professionals falling foul of this, either because they do not disclose, or because they do so and cannot satisfy professional bodies that they remain a fit and proper person for their role.
For more information on how we provide legal support for people in professional services, please contact Regan or Gemma by email to firstname.lastname@example.org, or call 0121 201 3765.
Image: Christine Smith | CC-BY-SA-4.0