Failure to disclose was grounds for dismissal

A head teacher has lost an appeal against the decision of an Employment Tribunal that a school had acted reasonably in dismissing her for failing to disclose her relationship with someone convicted of making indecent images of children.

In AvB and another [2016], the Court of Appeal was asked to consider whether an Employment Tribunal had been entitled to find that a school's decision to dismiss the teacher was within the band of reasonable responses for the purposes of unfair dismissal. The Court held that she had failed in her safeguarding responsibilities in not disclosing the relationship to her employers, despite having made enquiries with various parties, including a probation officer and a police officer, about whether she should inform her employer of the conviction.

The school had dismissed the teacher on the grounds that her failure to disclose the relationship put the safety of the children at risk. The governors also considered the teacher's failure to accept that she had done anything wrong, which left them with no option but to dismiss her. The Court of Appeal found that a disclosure to the school governors would have allowed them to take steps to prevent any danger to the children, and that given her position as head teacher with safeguarding responsibilities, the teacher should have realised that she had a duty to inform the school of her association. Lord Justice Elias disagreed with the majority verdict of the court, finding that the evidence did not justify the conclusion that the relationship increased the risk to children at the school.

However, in a majority verdict, the Court found that there was no need for the school to identify what the risks to the children might be, as the head teacher's partner posed more than a 'general' risk to children. Whilst it made clear that dismissal in such circumstances was not inevitable and was based on the particular facts of the case in the failure to disclose and to admit her error of judgement, the Court did not make clear when a teacher had a duty to disclose and when they might reasonably decide to withhold information from their employer.

For more information, help or advice in this area please contact Jill Donabie on 0191 211 7905 or via [email protected].