Reilly v Sandwell Metropolitan Borough Council (2018)
Would it be fair to dismiss an employee if they had failed to disclose a relationship with a person convicted of serious criminal offence (even if this was not necessarily a breach of an express term of the employee’s contract)? This question was addressed by the Supreme Court in the case of Reilly v Sandwell Metropolitan Borough Council (2018) UKSC 16. The Supreme Court also considered the standard approach to the reasonableness of a dismissal, the Burchell test.
The Claimant was employed as the head teacher of a primary school. She had a personal relationship with a man who was convicted of making indecent images of children. Their relationship was not sexual and they did not live together, although they had jointly bought a house and the Claimant stayed there with him occasionally. The Claimant knew of his arrest and subsequent conviction. However, she did not inform her employer, which at that time was the local authority.
The school became aware of her friend’s conviction and, knowing of her relationship to him, she was suspended pending a disciplinary investigation. The panel held that she had been under an obligation to inform the school of the situation, and by failing to do so, was guilty of gross misconduct. She was dismissed as a consequence. One factor that stood against her was her refusal to
accept that she should have disclosed the relationship and her friend’s conviction.
The Employment Tribunal proceedings
The Claimant brought a claim of unfair dismissal. She argued that she was under no duty to disclose the relationship, and there was no term of her contract of employment which required her to do so. The council argued that although there was no express term covering this situation, she was under a duty to disclose. The Employment Tribunal accepted this. Whilst the Tribunal held that
her dismissal was unfair on separate procedural grounds due to problems with the appeal process, she was not entitled to any compensation on the basis that she had contributed to her dismissal through her own actions.
The Claimant appealed to the Employment Appeal Tribunal and subsequently to the Court of Appeal, but both appeals were rejected. The Claimant appealed to the Supreme Court.
The Supreme Court’s decision
The Supreme Court endorsed the Tribunal’s view that the Claimant’s failure to disclose her relationship and her friend’s conviction, and her ongoing refusal to accept that she had been wrong, merited dismissal. Lord Wilson used the case as an opportunity to consider the Burchell test (British Home Stores Ltd v Burchell (1978) ICR 303). This is used where the employer asserts that the
fair reason for dismissal was the employee’s misconduct. The tribunal must be satisfied that:
- The employer genuinely believed that the employee was guilty of the misconduct.
- The employer had reasonable grounds for this belief.
- The employer had carried out a reasonable investigation.
The tribunal would then consider whether the employer had acted reasonably or unreasonably in treating the misconduct as sufficient reason to dismiss. As Lord Wilson noted, the Burchell test was not directed at this issue of reasonableness, but the test is often applied as if it did. However, no harm was done by this approach. Lord Wilson concluded that a dismissal can be fair even if the
alleged misconduct is not in breach of contract. In this case the Claimant was under a duty to disclose the relationship, and it was for the school governors to assess the risks. This was compounded by her continuing lack of insight.
Lady Hale also questioned whether a dismissal could be fair if the alleged misconduct was not a breach of contract but, as she agreed that the Claimant was under a duty to disclose the relationship, that was not an issue in this case. She also questioned whether the Burchell test was appropriate to the test of reasonableness, for the same reasons as Lord Wilson, but since the Court had not heard argument on these points she expressed no view.
Primarily, this case reinforces the breadth of the duties owed by an employee to an employer. The tribunal upheld the employer’s decision that the employee was under a duty to disclose her relationship with a person convicted of a serious offence and who posed a risk to children. Her failure to recognise that she was at fault exacerbated this.
However, the Supreme Court also emphasised that an employee can be fairly dismissed for conduct that does not necessarily amount to a breach of contract. The tribunal had applied the correct test by holding that her employer genuinely believed that the non-disclosure amounted to misconduct, there were reasonable grounds for that, and dismissal was in the range of reasonable
responses. Whilst there may be risk in approaching the Burchell test too rigidly, and the hints dropped by the Supreme Court may lead to change in the future, for now employers should still know what they must do in order to arrive at a fair dismissal.
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