To what extent must your staff disclose information about their friendships with individuals who could pose a risk to children or vulnerable adults? Can you dismiss them for simply failing to disclose this information?
Jenny Arrowsmith examines the Supreme Court’s judgment in Reilly v Sandwell Metropolitan Borough Council.
Background
Ms Reilly was an experienced headteacher with an exemplary disciplinary record.
She had developed a close friendship with Mr Selwood over a number of years. In 2010, he was convicted of making indecent images of children and, although Ms Reilly was aware of this, she did not notify the governing body of the school or the local authority. When the local authority discovered this, it suspended Ms Reilly and convened a disciplinary hearing, alleging that she had committed a serious breach of her employment terms and that this amounted to gross misconduct.
During the disciplinary hearing, Ms Reilly refused to accept that her close relationship with a convicted paedophile might pose a risk to pupils and that her failure to disclose this had been wrong. She was dismissed without notice and her subsequent appeal was dismissed.
She alleged unfair dismissal. The Employment Tribunal decided the reason for her dismissal was fair but procedural defects in the appeal process rendered the process unfair (Ms Reilly’s compensation was reduced to nil). Both the Employment Appeals Tribunal and Court of Appeal rejected her appeals.
Supreme Court decision
The Supreme Court had to decide whether Ms Reilly had a duty to disclose her relationship with Mr Selwood and whether her failure to disclose merited her dismissal. If she wasn’t, and it didn’t, then her dismissal would be unfair.
Under the terms of Ms Reilly’s contract of employment she was required to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” and to “be accountable to the Governing Body for the maintenance of… the… safety of all… pupils.” She argued that her relationship with Mr Selwood did not engage the governing body’s safeguarding functions, and she had therefore not breached the terms of her employment contract.
The Supreme Court disagreed. Paedophiles represent a danger to children both directly and indirectly by operating through those with whom they associate. Mr Selwood was a danger to children, and his relationship with the head “created, to put at its lowest, a potential risk to children”. It was not appropriate for Ms Reilly to assess risk – that was a function of the governors.
It therefore found that the tribunal was entitled to conclude that Ms Reilly’s failure to disclose her relationship with Mr Selwood amounted to a breach of contract and merited her dismissal. Most damning was Ms Reilly’s refusal to accept this, which “suggested a lack of insight” and “rendered it inappropriate for her to continue to run the school.”
Implications for schools and colleges
It will not always be appropriate to dismiss a member of staff whose friend or family member is convicted of an offence that indicates they pose a risk to children or vulnerable adults – although there are specific restrictions that apply in some cases. See Disqualification by association box below.
If the staff member makes a disclosure, you should carry out a risk assessment to ascertain what steps you need to put in place to protect your pupils. This might include reaching agreement that the friend/family member will not be allowed to enter the school/college building, or that information about pupils would not be removed from the school/college or stored in any place where they might be able to access it.
In this case, the Supreme Court said that had Ms Reilly disclosed her relationship to the school governors, it is “highly unlikely” she would have been dismissed because the school would have worked with her to minimise risk.
Schools and colleges should include relevant provisions in staff contracts of employment to make it clear that they should disclose any relationships they have with individuals who are suspected of, charged with, or convicted of, serious offences.
However, if a member of staff does not disclose a relationship that could put your pupils at risk, you should:
- Investigate
- Hold a disciplinary hearing
- Decide on an appropriate sanction.
What is appropriate will depend on:
- Whether that person has had access – unsupervised or otherwise – to pupils
- Why the staff member did not disclose the relationship in the first place
- Whether or not they accept they should have done
- Whether you are satisfied that the error or judgment will not be repeated.
Disqualification by association
The Childcare Act 2006 imposes conditions that those providing childcare to children under the age of eight – including non-maintained primary schools – must be registered.
In addition, it requires staff to disclose certain previous and unspent convictions of anyone living in their household, including parents, children, siblings, lodgers, flatmates etc. Staff only have to tell schools what they already know about the unspent convictions of anyone in their household – they are not required to go home and ask awkward questions.
If you are advised that a member of the employee’s household has a relevant conviction, you must:
- Notify Ofsted within 14 days
- Inform the staff member that you have done so and ask them to apply for a waiver
- Consider whether the employee can be temporarily redeployed (to a later years role), allow them to work from home or put them on paid-leave or suspension.
If you have redeployed the member of staff, make sure that you keep a note of your rationale to demonstrate that you have carried out a risk assessment.
Schools must make sure that their staff are aware of these provisions.
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