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The Supreme Court heard the case of Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 in which it considered the duty of Reilly, a headteacher at a school, to disclose her relationship with a man called Mr Selwood who was convicted making indecent images of children.

The case was heard before Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Hodge on 12 Dec 2017. Judgment was given on 14 Mar 2018. 

Ms Reilly was a teacher at Sandwell School and was close friends with Mr Selwood but their relationship was not sexual. They co-owned a house and as a result Ms Reilly witnessed Mr Selwood being arrested on suspicion of downloading indecent images. Over the following months it became clear to Ms Reilly that Mr Selwood was most likely guilty. Concurrently, Ms Reilly applied for the position of Headteacher and was appointed. She failed to disclose any information on Mr Selwood’s arrest. Mr Selwood was convicted of making indecent images of children. Ms Reilly still did not disclose this to the school.

The school independently learnt of Mr Selwood’s conviction and Ms Reilly’s failure to disclose her relationship with him. The governors suspended Ms Reilly immediately on full pay. Ms Reilly was summoned to attend a disciplinary hearing to answer the allegation of failing to disclose her relationship with a man convicted of sexual offences towards children. This was considered to be a serious breach of her employment contract and amounted to gross misconduct. The Panel upheld this conviction. Ms Reilly continued to refuse to accept that her relationship with Mr Selwood might be a risk to pupils and that not disclosing it had been wrong.

Ms Reilly made a claim that her dismissal had been wrong. Ms Reilly’s evidence was that she had asked numerous people (a police officer, probation officers and officers of other local authorities) as to whether she should disclose and their answer had been that she had no duty to do so. However the tribunal found this evidence to be unclear. Two of the probation officers denied giving such advice in their statements. The tribunal also noted that a third probation officer had advised that she should disclose.

The tribunal found that the reason for Ms Reilly’s dismissal was her failure to disclose her relationship with Mr Selwood, that the school genuinely believed this to be a misconduct issue, that this belief was reasonable and that, because Ms Reilly continued to refuse to accept that her non-disclosuree had been wrong, her dismissal had been a reasonable response. The tribunal found that the hearing of Ms Reilly’s appeal had been unfair but that there had been a 90% chance that she would have been convicted anyway and therefore reduced compensation by 90%.

The tribunal then went further. It said that, following Employment Rights Act 1996, s 123(6), she had contributed to her dismissal by her blameworthy conduct at 100%. In reaching this conclusion, the tribunal considered subsection 4 of the Act in order to decide whether ‘in the circumstances… the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee’.

The issues before the Supreme Court:

Ms Reilly’s challenge is to the tribunal’s decision that she was under a duty to disclose her relationship with Mr Selwood. Her job description specifies such a responsibility to the Governing Body and safeguarding is prioritised. Ms Reilly asks where is the evidence that her particular relationship with Mr Selwood engaged these safeguarding functions.

The Supreme Court considered that Parliament has recognised the danger to children created by the indirect link of a sex offender to the people with whom he associates. A danger to children was created because Ms Reilly would know details of pupils, where they live and their whereabouts. She could also authorise access.

The tribunal found that Ms Reilly knew that she was under a duty to disclose because she would not have made enquiries as to the circumstances in which disclosure was triggered. This is illogical. Ms Reilly should not have been conducting the assessment. It was for the governors to conduct the assessment. Had she disclosed, it is highly unlikely that she would have been dismissed.

Therefore the Supreme Court supported the tribunal’s conclusion that the panel was reasonable in finding Ms Reilly’s non-disclosure a breach of duty that also merited her dismissal. Her refusal to accept this suggests a lack of insight which renders it inappropriate for her to continue running a school. Ms Reilly’s application was dismissed.