A headteacher was correctly dismissed for not disclosing her friendship with a man who had been convicted of making indecent images of children, the Supreme Court ruled this morning – in a case which president Baroness Hale suggested missed an opportunity to consider important points of employment law.
In Reilly (Appellant) v Sandwell Metropolitan Borough Council, the court ruled that dismissal of Caroline Reilly from a school (which cannot be named because of reporting restrictions) to be fair. It was backing rulings from the Court of Appeal, Employment Appeal Tribunal (EAT) and Employment Tribunal.
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.
Lady Hale’s concurring judgment argued that had the case been argued differently, it might have presented an opportunity for the Supreme Court to consider two points of ‘general public importance.’
These are: 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; and whether the approach laid down in 1978 by the EAT in British Homes Stores Ltd v Burchell is correct. In Burchell, an employee was dismissed for misconduct but the EAT explained that a tribunal is not there to consider whether the employee was actually guilty of misconduct when determining whether the dismissal was fair.
According to Hale, this approach can lead to dismissals that were fair being treated as unfair and dismissals which were unfair being treated as fair.
‘It is not difficult to think of arguments on either side of this question but we have not heard them,’ she wrote.
Hale added that parliament has had the opportunity to clarify the approach, which it has not done, and that those who are experienced in the field ‘may consider that the approach is correct and does not lead to injustice’.
‘It follows that the law remains as it has been for the last 40 years and I express no view about whether that is correct,’ she added.
Reilly was represented by Martin Palmer instructed by employment specialists Spencer Shaw Solicitors. Sandwell was represented by Sarah Hannett and Anna Bicarregui, instructed by Sandwell MBC Legal Services.