This is an interesting case which looks at the responsibilities of a headteacher to disclose personal matters to the school and the governors.
In this case, the Claimant (A) was a long qualified school teacher who applied for a job as a headteacher of a primary school. She was successful in her application and commenced employment on 1st September 2009.
Privately she had a relationship (non-cohabiting) with a male (IS). IS was arrested in February 2009 and in February 2010 was convicted of child sex offences. At no stage did A disclose to the primary school (B) or the governing body (C) that she had a relationship with a man who had been convicted of child sex offences for which he received a three-year community order and a sex offences prevention order.
A’s contract of employment contained a disciplinary procedure. It provided for gross misconduct, which it described as “conduct of such a nature that it justified no longer tolerating the continued presence at the place of the work of the employee who commits such an offence”. In addition, an example of conduct which could lead to disciplinary action was described as “neglect of duty”. An example given was where an employee “fails to report any matter which it is their duty to report”.
B and C learned of IS’s conviction and his relationship to A in June 2010. Feeling that there could be serious child protection concerns, A was suspended.
During subsequent investigations, A said that, around the time of IS’s arrest, she had asked a police officer, senior officers with the Probation Service, various local authorities, the CRB, Stop It Now, the Lucy Faithfull Foundation and governors of other schools whether she needed to disclose IS’s arrest to potential employers. She said that she had been told that, as she was not under suspicion and had not been arrested, she did not need to disclose anything to anybody.
Following a disciplinary hearing, A was dismissed for gross misconduct for not disclosing the relationship. The disciplinary chair concluded that it should have been obvious to A that she needed to disclose information such as her friendship with IS to the governors once it was clear that he was to be charged and convicted of a child sex offence. The chair concluded that A should have and would have known safeguarding and child protection were key issues for a governing body and any concerns or issues no matter how small which impacted on those issues should be disclosed.
A brought a claim for unfair dismissal. She succeeded in her claim that the dismissal was unfair on the basis that her employer had not followed a correct procedure. However, the Tribunal concluded that, had a fair procedure been adopted, there was a 90% chance that A would have been dismissed in any event. It also went on to make an assessment of contribution by A to her unfair dismissal, which it assessed at 100% so she was awarded no compensation. The Tribunal concluded that having regard to the context of A being the headteacher of a primary school and the nature of the information and the relationship with IS, to fail to disclose that information amounted to gross misconduct, and dismissal was within the range of reasonable responses open to a reasonable employer.
A appealed to the Employment Appeal Tribunal (EAT) arguing that at no point had the duty to disclose the relationship been sufficiently articulated nor had it been made clear that it was her duty to report to the governors in these circumstances. Merely to say it was obvious she should have reported it was an insufficient basis for finding gross misconduct. The EAT rejected this argument. It said that the nature of the relationship between the headteacher and the governing body and, in particular, her role of providing advice, assistance and information in order to enable the governing body to fulfil its responsibilities, including for the safety of pupils, was made clear in the person specification for the role of headteacher and her enquiries about whether to disclose the information showed she must have been aware of it.
So, in matters relating to safeguarding, it seems it may not matter whether a duty to disclose is fully spelled out in the contract if the employee must or even should have known where their duty lay.
