Duty to Disclose…

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Recently, the Supreme Court has upheld a decision of the employment tribunal confirming that sufficient grounds for dismissal existed where a headteacher failed to make the appropriate disclosures. The full case can be found at Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16

What did the headteacher do?

She failed to make a disclosure to school governors regarding her relationship with Mr Selwood – a person convicted of making indecent images of children.

What was the nature of the relationship?

This is a curious point in the judgement. The relationship between the headteacher and Mr Selwood was described as a personal one, although the court did not describe it has a romantic relationship. However, the headteacher and Mr Selwood owned property together, holidayed together, and the headteacher would spend nights at Mr Selwood’s home.

Why is this case important?

The Supreme Court found that the tribunal was entitled to conclude that it was a reasonable response for the panel to have concluded that the headteacher’s non-disclosure not only amounted to a breach of duty but also merited her dismissal.

The headteacher’s position potentially allowed Mr Selwood access to the pupils. The headteacher had a particular responsibility to the safety of pupils, and a responsibility to recognise and acknowledge any potential risk. If the headteacher disclosed this information to the governors of the school, they would have been able to assess the risk, and put in place restrictions that protected the pupils. The headteacher’s failure to disclose, and her unwillingness to accept responsibility for her actions, demonstrated she was not suitable to the role of head teacher.

Summary

The case highlights that there are instances where a person who has a duty to disclose information may not be aware that they ought to.

The case also demonstrates the problem with implied terms of contract (i.e. the implied term that the headteacher should have disclosed the information), and suggests a need for employment contracts to specify the kinds of information that should be disclosed in order to create a safer environment for the pupils, but also to avoid the disruption of a dismissal.

What should I do?

While this case helps develop employment law it also highlights potential safeguarding vulnerabilities when hiring or recruiting new personnel.

For employers, it is important to develop robust recruiting processes to ventilate any issues that may impact on safeguarding. Further, it is equally important to have clear strategies for workers to communicate safeguarding issues in accordance with statutory guidance and the underlying legislation.

For governors, it is important to ensure that you comply with your legal duties by making sure safeguarding policies and procedures are up to date. Further establish or develop your safeguarding lead and take steps to implement effective training within your organisation.

For individuals, if you have any doubt regarding your personal circumstances, you should seek the appropriate advice, when raising safeguarding issues with your employer.

For more information on how we can help your organisation, please call Tony McPhillips on
0191 211 7908 or email [email protected].