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||Neutral Citation Number:  EWCA Civ 766
||Case No: A2/2014/1694
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
Wilkie J, Baroness Drake of Shene, and Mr. P Gammon MBE
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LADY JUSTICE BLACK
LORD JUSTICE FLOYD
||- and -
B local authority
||- and -
C governing body of school
MR MARTIN PALMER (instructed by Spencer Shaw Employment Law & Litigation) for the Appellant
MS SARAH HANNETT (instructed by Legal Services Department of an MBC) for the Respondent
Hearing date : 24 February 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Elias :
- The appellant was a head teacher at a primary school, of which the second respondent was the governing body, until she was summarily dismissed for gross misconduct in May 2011. The reason for her dismissal was that she had failed to reveal to the school authorities that a male, IS, with whom she was in a close personal relationship, had been convicted in January 2010 of making indecent images of children by downloading them onto his computer. The school considered that the failure to disclose this relationship constituted gross misconduct because it was putting the safety of children at risk. She claimed that after having taken advice from various quarters, she had made a judgment that she was under no obligation to disclose this information. She maintained that position throughout the disciplinary process.
- Following her dismissal she brought proceedings for unfair dismissal and sex discrimination. The Employment Tribunal ('the ET') held that the initial decision summarily to dismiss was in principle fair but had been rendered unfair by deficiencies in the appeal process. However, the ET went on to find that even had fair appellate procedures been adopted, there was a 90% chance that she would have been dismissed fairly in any event (what is known as a "Polkey reduction" after the House of Lords decision in Polkey v AE Dayton Services Ltd  IRLR 503) and that her contributory fault was 100%. As a result of the latter finding, she received no compensation at all. Her sex discrimination claim was rejected and has not been further pursued.
- She appealed to the Employment Appeal Tribunal ('the EAT'), (Wilkie J, Baroness Drake of Shene, and Mr. P Gammon MBE) contending that the ET had erred in law in finding that the initial decision to dismiss was fair as a matter of substance. She submitted that there was no proper evidential basis to justify the conclusion that she was under a duty to disclose and therefore no finding of misconduct could properly be made. She accepted, however, that if the dismissal had in principle been fair, as the ET had found, then the findings on Polkey and contributory fault did not themselves display any error of law.
- The EAT dismissed her appeal, holding that it was open to the ET to reach the conclusion it did on the evidence before it. She now appeals to this court, essentially relying on the same arguments which failed before the EAT.
- There are two preliminary observations to make. The first is that the EAT made a permanent order restricting the reporting of the case in a way which would identify the school or any of the children. The effect is to anonymise the names of the parties. Hence the appellant is A; the first respondent, the relevant local authority is B; and the second respondent, the governing body of the school, is C. We make it plain that the order continues. The second point is that the school now has academy status with the result that all the liabilities of the governing body have transferred to the local authority. As a consequence, only the first respondent, the local authority, has any continuing interest in the outcome of this appeal.
- A had commenced her appointment as head teacher on 1 September 2009. She had been teaching in primary schools for 23 years without blemish. She had known IS since 1998 and had developed a relatively close relationship with him although they did not live together. Her evidence was that they had bought a house together in 2003 as an investment, and that a joint bank account had been set up to pay the mortgage. He lived in the property but she sometimes stayed there. She went on holiday with him in April 2010, and she was a named driver on his car insurance. They were not, therefore, partners but the relationship was more than a mere financial one.
- IS was arrested, cautioned and bailed in February 2009 on the grounds that he was suspected of having viewed online indecent images of children. A was in fact in the house when he was arrested in the early hours of the morning, but it is accepted that she had known nothing about these activities. IS was convicted of making indecent images of children on 1 February 2010. He was sentenced to a three-year community order and was made subject to a Sexual Offences Prevention Order which included a provision forbidding him to have unsupervised access to children under 18.
- A alleges that she had sought advice from various quarters as to whether or not she ought to disclose information about her relationship and IS's offending to the school and had been advised that this was not necessary. Subsequently the school was told by the Council's Designated Officer that the claimant resided with IS, which was not in fact entirely accurate. The officer was concerned that there could be child protection issues. She convened a strategy meeting with the chair of governors. This led to the suspension of A. There was an investigation into the circumstances carried out by the principal investigating officer, Ms John-Hynes, during the course of which she interviewed A. The result of the investigation was that A was charged with gross misconduct.
- After criticism of the initial formulation of the charges by her solicitors, they were reformulated as follows (allowing for what seem to be typographical errors):
"Serious breach of implied terms of the contract of employment, in relation to the breach of the implied term of trust and confidence, a subset of which is the duty of honesty and loyal service to perform your duties by failing to disclose information that could put the school at risk of upholding safeguarding duties, and the obligation which is inherent on your client, by way of inclusion in the policies to which you refer.
Professional misconduct by not demonstrating honesty and integrity in upholding public trust and confidence in relation to allegation 1.
Neglect of duty - without sufficient cause failed to discharge the obligations which a contract placed upon her."
- A attended a disciplinary hearing which commenced on 6 May 2011. The chair of the disciplinary panel was Mr Griffin, chair of governors of another local primary school, and the other two members were both governors of the second respondent's school. The only witness was the Council's Designated Children's Officer.
- A had produced a statement following the interview which constituted part of the disciplinary record. This included an account of the inquiries she had made in order to decide whether she should disclose the relationship or not. The ET summarised this evidence as follows, para. 4.10 in decision:
"In her statement the claimant said she sought advice from a police officer because she was in the process of applying to schools for posts and had already applied for that of head teacher post at the second respondent and she wondered if this needed to be disclosed. She was informed that all that was needed was an enhanced CRB check. She said that she had subsequently made enquiries with senior officers with the probation service and various local authorities and been in touch with Stop It Now and the Lucy Faithfull Foundation. She had made generally enquiries but had not given her name providing the scenario that she had a financial relationship with IS. She was told that as she was not under suspicion and had not been arrested she did not need to disclose anything to anybody. She had spoken to a senior probation Officer (who had since retired) Richard Green and Nigel Byford (Head of Public Protection) who 'could not understand why I would need to disclose anything to any Governing Bodies'. She referred to a letter that she had had evidencing that advice and notes made at the time. She had asked friends to speak with other Governors at other schools who had all said they could see no problem, in particular a former probation officer who was a chair of a governing Body. She had telephoned the CRB who told her as she had no conviction this was not a concern. She had not disclosed to the second respondent that she was in a financial or any relationship with IS and that he had been arrested or convicted in connection with making indecent images of children because based on the information she had gathered, there was no need."
The Tribunal was critical of this part of her evidence:
"Her evidence under cross examination about what information she had presented in order to seek advice was far from clear nor was there any cogent explanation about why she had not disclosed it to Chair of governors other than she did not know whether they would have known what their responsibilities as far as data protection were concerned and she was concerned about preserving confidentiality."
- There were three written statements of some significance which also formed part of the disciplinary record. They were at odds with the evidence given by the appellant as to what was said to her about whether she should disclose the information. The first was from Mr Green, Head of Complaints at the relevant Probation Trust. He said that he had met the claimant because she had made a complaint about IS's sex offender manager. Part of that complaint related to the possibility that her employer would be told by the Trust about her relationship with IS. She had told him that if the Trust were minded to tell the governors, she would prefer to do it first herself. Having consulted with Nigel Byford and Mr Bates, the Trust's Director of Operations and Performance, Mr Green told her that it would not be for the Trust to make that decision but that the issue would be considered at a joint agency, MAPPA; ('Multi Agency Public Protection Arrangement') meeting and any recommendation about disclosure would be made then. He advised her to speak to Mr Byford about the role of MAPPA.
- The second statement was from Mr Byford. He agreed that he had discussed the matter with A by telephone but he denied that he had given A any specific advice about disclosure. He said that A had been concerned about IS's well-being but he had tried to point out to her that the perception of others might be different.
- The third statement was from Mr Bates who again disagreed with the account given by A of their conversation. He said that he did not know the precise nature of the relationship between A and IS but that he advised her that it would be wise for her to notify the local authority, either through the chair of the governors or in some other way, of her connection with IS. None of these statements, therefore, is consistent with her own account of what was said in these conversations.
- The investigating officer, Ms John Hynds, presented the management case before the disciplinary panel. She did so in a wholly inappropriate way, making a series of ill-considered observations which were extremely critical of A and highly emotive. Some of these are reproduced in the ET's decision. It was unfortunate that the disciplinary panel did not rebuke her for this and bring her to order at the time. Not surprisingly, her conduct formed part of the grounds of appeal against the fairness of the hearing. However, the ET accepted the evidence of Mr Griffin that he (and by inference the panel) had not been influenced by these unfair and hostile comments. The appellant has realistically not sought to go behind that finding.
- In giving its reasons for reaching the conclusion that there was gross misconduct, the panel specifically stated that it was ignoring certain matters which had been raised in evidence. These included an assertion that A herself may have been subject to grooming by IS. The statement from the panel in which it recorded its decision expressed concern at A's lack of insight into how her relationship might pose a risk to children attending the school, and concluded that her failure to disclose the relationship following IS's arrest showed a lack of understanding by her both of the concerns of the governors and the potential risk posed to children in her care.
- In his evidence to the ET, Mr Griffin gave a slightly fuller account of his reasoning (and the inference must be, although it was not said in terms, that it reflects the reasoning of the panel). It was summarised by the ET as follows, para 4.26:
"… [Mr Griffin] was able on the basis of the facts which he considered had been presented to him to conclude that it should have been obvious to [A] that she needed to disclose information such as her friendship with IS to the Governing Body once it was clear that he was to be charged and convicted of a child sex offence and that the claimant was guilty of gross misconduct. Her role was that of a head teacher and was to assist the governing body in discharging its functions, one of which was the safeguarding and child protection. He concluded that she should have and would have known safeguarding and child protection were key issues for a governing body and any concerns or issues no matter how small which impacted on those issues should be disclosed. Had the claimant accepted her error, Mr Griffin would have considered an alternative sanction to dismissal. However in the absence of any change of position, he decided that, having had due regard to her hitherto blameless disciplinary record, dismissal was the appropriate sanction."
- There was an appeal from the panel's decision which was heard by Ms Hodgkiss. The ET was critical of this stage of the process. It held that the chair did not properly understand her task, that she had not been properly trained, and that she came to the issue with a closed mind. She was influenced by the fact that in her view A should have ended her relationship with IS, although that was never the case against A. It is not necessary to explore this aspect any more fully because it is accepted that the ET was entitled to find that the dismissal was unfair because of the deficiencies in the appellate process. But given its further conclusion with respect to Polkey and contributory fault, this was a Pyrrhic victory for the appellant.
The principles of law
- The relevant legal principles are not in dispute and can be briefly summarised. Section 98(1) of the Employment Rights Act 1996 provides:
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
The reasons specified in subsection (2) include misconduct.
- The approach which the Tribunal should adopt when considering the question of fairness is set out in section 98(4):
"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—"
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
- The classic formulation of the employer's obligation in misconduct cases, frequently cited in the Court of Appeal, is the succinct summary given by Mr Justice Arnold in British Home Stores v Burchell  IRLR 379:
"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
- Burchell lays down the approach which tribunals should employ when determining whether the finding of misconduct has been fairly reached. It is colloquially known as the 'band of reasonable responses" test: see Turner v East Midlands Trains Ltd  EWCA Civ 1470;  IRLR 107, para. 1 per Elias LJ. The same principle applies when determining whether the misconduct justifies the sanction of dismissal. Not all acts of misconduct do, and at that stage the question is whether dismissal falls within the range of sanctions which a reasonable employer could properly impose upon the employee.
- The Turner case also confirms that the application of the Burchell test is compatible with Convention law so that even where the dismissal is alleged to be in breach of a Convention right, it is not for the court or tribunal to take on the role of primary decision maker and substitute its view for that of the employer: paras.49-58 per Elias LJ.
- Even where a dismissal is found to be unfair, the compensation may be reduced or even wholly extinguished on either of two grounds. First, where the dismissal is unfair but there is a chance that dismissal would have occurred in any event even had the employer acted fairly (typically this arises where the dismissal has been unfair for procedural reasons), a tribunal is entitled to reduce the compensation having regard to that likelihood (the Polkey deduction). Second, compensation may be reduced by such amount as the Tribunal considers to be just and equitable, even up to 100% in an appropriate case, on the grounds that the employee's conduct had caused or contributed to his or her own dismissal: section 123(6) of the 1996 Act. There was a 100% finding of contributory fault in this case.
The hearing before the ET
- The employers contended that there were two bases on which the dismissal was justified. First, there was a genuine belief on reasonable grounds, and following a fair procedure, that A had failed in her duty to disclose the nature of her relationship with someone accused of these serious offences against children. Second, there was in any event a breakdown in trust and confidence between A and the governors which justified A's dismissal for "some other substantial reason".
- Mr Palmer, counsel for A, submitted that there was no proper basis for concluding that A had failed in her duty. She had exercised a professional judgment whether to disclose and even if her judgment had been erroneous, that did not constitute misconduct sufficient to warrant dismissal. The real reason for the dismissal, he submitted, was her failure to disassociate herself from IS. Moreover, there was no evidential basis supporting the contention that dismissal had been for some other substantial reason.
- The ET dealt with the question of the reason for dismissal in paragraph 25 and rejected the alternative reason based on loss of trust and confidence.
- Then, in paragraph 26 which lies at the heart of this appeal, it gave reasons why it had concluded that the employer had reasonable grounds for sustaining that belief:
"We now turn to whether the second respondent had reasonable grounds on which to sustain that belief. The essential facts are not in dispute. The claimant did not deny that she had not disclosed anything to her Governing Body about her relationship with IS or his conviction. It is not surprising that the obligation to disclose this particular information is not to be found expressly set out in the claimant's contract of employment. We consider that it is obvious that for a head teacher to have failed to disclose such information to her governing body whether it is expressed in her contract of employment or not is a matter of misconduct. The claimant herself knew that she was subject to a duty to disclose because she would not otherwise have made enquiries as to the circumstances in which disclosure was triggered. That she recognized the importance of such information as far as her employment was concerned was demonstrated by her complaint when she expressed concern about the implications for her if the Trust disclosed it."
- The ET then concluded that the investigation had been reasonable. It drew a distinction between the investigation itself and what it described as the "highly coloured and emotional way" in which it had been presented. As I have said, it accepted that the defective presentation of the case did not influence the decision of the disciplinary panel.
- The ET then turned to the question whether the dismissal fell within the range of reasonable responses and amounted to gross misconduct. It held that it did having regard to A's position as head teacher of the primary school, the nature of the information, her relationship with IS and the failure to recant.
- The reasons given by the ET for finding 100% contributory fault essentially reflect this reasoning, but make it clear that the obligation to disclose arose because of the governing body's responsibility for safeguarding the safety of the children at the school (para 31):
"In addition, we find that the claimant contributed 100% to her dismissal by her blameworthy conduct. The claimant was the head teacher of a primary school. She has a relationship with IS which was more than just a financial relationship and he had a conviction for making indecent images of children. The Governing Body of the second respondent has responsibilities for safeguarding children. The claimant had deliberately decided to withhold information from it which she feared would have implications for her career despite her recognition that the role of the governing Body was that of a critical friend. The claimant chose to not make disclosure rather than permit the governing body to exercise its judgment in the matter. She was given the opportunity at the disciplinary hearing to reconsider her position but chose not to do so nor did her position change at the appeal at the appeal [sic]. Her first thoughts were her own position when IS was arrested and it is clear that from the beginning his arrest the question of disclosure and the implications for her employment were in her mind and she made a conscious decision not to disclose justifying her decision on inconclusive evidence which Mr Griffin had implicitly rejected."
The appeal to the EAT
- Before the EAT the appellant submitted that it was not clear how the duty to disclose fell within the terms of the appellant's contractual obligations; and that the assertion by the ET in paragraph 26 that it was "obvious" that there was a duty to disclose was wholly inadequate. There was no explanation why the ET reached such a conclusion and it was not self-evident; it was an unreasoned assertion lacking any evidential basis.
- The EAT allowed A to argue that her Article 8 right to respect for her private life had been infringed, although this was on the basis, as all parties accepted, that the formulation of her claim in human rights' terms did not add anything of substance to the fairness arguments which had been addressed before the ET. If dismissal was in principle justified, as the ET had found, then A accepted that any interference with private life would be proportionate. She could not succeed under Article 8 but fail on the fairness issue or vice versa.
- The EAT rejected the appeal. The contractual nature of the obligation was sufficiently clear. The disciplinary rules stated expressly that neglect of duty was a disciplinary offence, and this included a failure to report any matter which the employee was under a duty to report. The EAT also considered that read as a whole the ET did in fact spell out the reasons why it ought to have been obvious to A that she should have disclosed the relationship to the school in the circumstances. The core of its reasoning is as follows (para 35):
"… As the Tribunal found, albeit surrounded to an extent by some verbiage, at the heart of this matter was an allegation that she had failed to disclose to the Governing Body her relationship with IS, a convicted sex offender and that it was said that this was a breach of her obligation as Headteacher to keep the Governing Body informed of any relevant matter which might affect the Governing Body's ability to assess and address any issue of possible safeguarding of children for whom they were ultimately responsible. The Tribunal found that she was aware that this was the essence of the allegation against her, really from very shortly after her suspension, if not immediately upon her suspension, and that this was what Mr Griffin found to have constituted the misconduct.
36. In our judgment, at the various points in the ET's decision, to which we have referred, it is made clear what the misconduct alleged amounted to and how it came to have the level of seriousness, both contractually and in relation to the relationship between Headteacher and Governing Body, to which the Employment Tribunal and the Respondents gave it. Whilst it is right to say that the Tribunal, at paragraph 26, do say that it was obvious that there was an obligation, which she had failed to discharge, to disclose such information, they then went on, in the remainder of that paragraph, to identify what it was that persuaded them that she must have been aware or ought to have been aware of such an obligation. She had acknowledged that she had been engaged in conversations with two different sources of potential advice, one which she initiated across a range of people described by the Employment Tribunal, arising almost from the moment when IS was arrested, with her enquiry of the police and a second, much more pointed, engagement with the Probation Trust when it became apparent to her that, after IS had been convicted and was subject to supervision by the Probation Service, a serious and ongoing issue had arisen, whether her relationship with IS was something which ought to be disclosed to her Governing Body by the statutory bodies conducting the supervision of IS.
37. It is of some significance, in our judgment, that the ET recorded in some detail what the outcome of that second string of engagement produced. It produced specific and direct advice from a senior member of the Probation Trust, Mr Bates, that she should, if acting wisely, disclose the nature of her relationship with IS to the Governing Body, and Mr Byford, far from giving her a green light, as she had sought to suggest, in his statement to the investigatory panel had made clear that, inferentially, her position was one which gave rise to possible perceptions of risk and, inferentially, could be read as clear encouragement to her to have made the necessary disclosure. True it is that the Claimant had at no time accepted that she was subject to a duty to disclose, but the Tribunal was entitled, at paragraph 26, to conclude that she must have known that she was subject to such a duty because of the intensive lines of engagement to which we have referred and which they described in the findings of fact section of their decision.
38. In our judgment, the Employment Tribunal was entitled to come to the view, having conducted this intensive scrutiny of the investigatory process and the documentation, that the belief of Mr Griffin and his panel in her misconduct, was not only genuine, but was a reasonable one and, for the reasons which they properly and sufficiently articulated, they were also entitled to conclude that Mr Griffin, in deciding with his colleagues to dismiss the Claimant, not just because of her failure initially to disclose, but because she had manifested, throughout the process and at the disciplinary hearing, an inability to perceive or acknowledge the obligation to disclose the nature of her relationship with IS to the Governing Body, was entitled to conclude that, notwithstanding her long years of good and impeccable service, this was a case in which dismissal did fall within the range of reasonable responses."
The grounds of appeal
- The principal ground of appeal essentially repeats the argument advanced before the EAT. Counsel submits that the ET judgment failed to identify what gave rise to a duty to disclose. There was no finding that the omission to do so had placed the school or the children at risk or even potentially so, and contrary to the conclusion of the ET, it is not obvious why A should have appreciated that this might be so. The ET was not entitled to make its own independent assessment of what was required. It should have focused on asking whether there was evidence from which a reasonable employer could have concluded that A's relationship with IS potentially increased the risk to children at the school. In fact there was none. Compelling A to disclose information about her relationship with IS was a significant infringement of her Article 8 right to private life which could only be justified for very good reason. Given the lack of any evidence at all that the children at the school may be subject to harm, dismissal for failing to disclose was a wholly disproportionate interference with that right. The conclusion that the dismissal was in principle fair (only rendered unfair by the procedural errors) was simply unsustainable.
- The EAT was wrong to find that there was evidence supporting the conclusion that A must have known that there was a duty to disclose. She had exercised a personal judgment which was not plainly erroneous, and there was no basis for inferring either that she did in fact appreciate that she should disclose this relationship, or that she ought to have done so. This was a difficult and nuanced decision and she ought not to have been summarily dismissed for taking a perfectly reasonable stance.
- In my judgment, it is critical to appreciate that the reason why the school considered that A was under a duty to disclose the fact of her relationship with IS was because it created at least the potential for an enhanced risk to children and therefore engaged the school's statutory safeguarding duty. The governing body could then determine what steps might be considered appropriate to eliminate any such risks. What in the eyes of the disciplinary panel made the issue more serious was the fact that at all times A refused to accept that she had acted improperly. That criticism too is premised on the assumption that the enhanced risk to children was so obvious that A could not properly maintain otherwise, so that her insistence on doing so exacerbated the initial wrongdoing.
- The ET concluded that she must have appreciated that she should disclose details of the relationship with IS otherwise she would not have made such detailed inquiries before deciding whether she would or not. She also must have realised the potential implications for her own position because she was so concerned when it appeared that the Trust might disclose matters to the school.
- The EAT accepted that these matters did indeed justify the inference that she must have known that she had a duty to disclose. That was particularly so given that the response to her inquiries, far from confirming that she was under no obligation to disclose, had suggested that she should do so, and certainly that it would be prudent to do so.
- I do not think that such a robust inference can properly or fairly be drawn either from the fact that she had taken soundings, or from the outcome of those soundings. Clearly A appreciated that there was a real question whether she should reveal this information or not; she would not otherwise have sounded out various people as she did. There seems little doubt that she was hoping that the advice would be that she need not do so. It was perhaps for that reason that, as the ET found, she was vague about disclosing precisely what the nature of her relationship with IS was when seeking views on this question. In addition – and this was a matter on which the EAT placed particular emphasis – she misrepresented in her statement what she had been told by, for example, Mr Bates and Mr Byford. It may be that she only heard what she wanted to hear.
- I would accept that the Tribunal was entitled to conclude from the evidence before it that A ought to have appreciated from her various conversations, and perhaps did appreciate, that whatever the strict legal position, it would be prudent to tell the governors about the relationship. However, that advice cannot ultimately determine whether she was under a duty to do so, and not all those she consulted appear to have taken that view. Moreover, the advice that it would be wise to do so could have been given for a number of reasons. For example, it might be a concern that the reputation of the school might be damaged, however unfairly, simply as a consequence of the head teacher being in a close relationship with an accused or convicted sex offender. It might be a concern that the continuing existence of her relationship with IS could create potential conflicts with the staff or parents. It might also be thought that a head teacher could reasonably be expected to have sufficient confidence in the governors to disclose the relationship to them in order to enable the governing body to consider how it will deal with concerns raised by parents or staff, or indeed the press, if and when the information comes into the public domain. But it was not concerns of that nature which were relied upon as giving rise to the duty to disclose. These do not provide the reasonable grounds which are necessary to sustain what the ET found to be the reason for dismissal relied upon by the employer. Furthermore, if those had been the reasons for imposing the disclosure obligation, it might have been difficult for the school to contend that breach of that duty warranted dismissal, let alone summary dismissal.
- The school in this case did in fact go somewhere along this road of relying on a reason other than its safeguarding duties by seeking to justify the dismissal on the grounds that failure to disclose had led to a breakdown of mutual trust and confidence in the employment relationship, thereby warranting dismissal for some other substantial reason. But the ET found that this was not the true reason for dismissal.
- In my judgment, there was simply no evidence which justified a reasonable employer concluding that there was even the potential for enhanced risk to children at the school. As a consequence there were no reasonable grounds for sustaining the belief in the reason for dismissal. The ET sought to sidestep the lack of evidence by saying that it was obvious. But that is stating a conclusion, not reasoning it. Moreover, it is striking that when A made her enquiries, no-one told her that she was obviously under a duty to disclose because of the potential for the relationship with IS to increase the risk of harm to children. That seems to me to be positively inconsistent with the finding of the ET.
- The EAT tried to identify some evidence. It said that Mr Byford inferentially told her that her position created a possible perception of risk, and inferentially encouraged her to report the matter. But I respectfully disagree that one can fairly draw those inferences from what Mr Byford is recounted as having said. He expressed the view that others would question her judgment if she did not disclose the relationship but that does not show that he thought that the children would be at risk, and nor is there any proper basis for asserting that she ought to have appreciated that this was his concern. As I have said, there are many other reasons why disclosure might be thought to have been prudent and why some of those with whom A conferred - by no means all, it seems - may have thought it an error of judgment for her not to disclose.
- In my judgment, therefore, on the basis of the evidence identified by the ET, I do not believe that the ET was entitled to find that a reasonable employer could properly have concluded that there was the potential for enhanced risk to children at the school. The basis for drawing that conclusion is lacking, and without that evidence, there is no basis for imposing the duty of disclosure found by the employer to exist. Nobody would dispute that protecting children from sexual harm is of the utmost importance, and disclosure is plainly necessary if the risk to children in the school is enhanced. But we are in a dangerous world if mere association with a sex offender warrants that conclusion being drawn. It must first be demonstrated that the nature and circumstances of the relationship does indeed increase the risks from which children at the school need safeguarding, or at least that there is a realistic basis for believing that it might. I do not doubt that the employer genuinely believed that the safeguarding role of the governors was engaged by this relationship, but in my judgment there were not reasonable grounds to sustain that conclusion.
- In the course of submissions before us – not in fact having been prefigured in her skeleton argument - Ms Hannett, counsel for the respondent authority, drew our attention to particular regulations which had not been referred to the attention of either the ET or the EAT, the Childcare (Disqualification) Regulations 2009. They are not directly applicable to A but counsel relies upon them to demonstrate how concerned the law is about relationships between teachers and sex offenders.
- It is not necessary to go into the detail of the legislation for the purpose of understanding the point being made. In order to provide child care provision for what are termed early years providers which covers children up to reception age, or later years children, who are children up to the age of 8, or those who manage such providers, which will include head teachers, the individual must be registered. But certain categories of person are disqualified from registration unless they have specific permission.
- Disqualified persons include those who have committed serious violent offences, sexual offences and offences against children. Crucially, for the purposes of Ms Hannett's submissions, they also include persons who either live in the same household where a disqualified person lives, or in a household where such a person is employed: see regulation 9. Counsel was not able to provide the explanation for this "guilt by association" provision, but it is presumably the fear that these individuals may fall under the influence of such persons.
- Ms Hannett did not suggest that these provisions are directly applicable. But she says that they demonstrate that there is a fear that the disqualified person may still influence others and it is not irrational for the school at least to conclude that A should have disclosed her relationship, albeit that it falls short of the statutory test.
- I do see the force of this but in my view this argument faces three difficulties. First, it was not the basis on which the school concluded that there may be a risk of harm. Second, it seems to be premised on the influence which the person who has committed the offences will exert. But in this case the possibility of grooming had been specifically raised by Ms John-Hynes when questioning Ms Mckinley, the authority's Designated Officer. She had replied that there could have been grooming even without any sexual relationship and even though she was an adult when their friendship started. However, Mr Griffin expressly stated that this had no relevance at all as far as he was concerned. Third, I do not think that a draconian rule which disqualifies people from their jobs merely because of their association with offenders should provide a basis for imposing other duties (in this case disclosure) on those who fall short of the necessary degree of association.
- Accordingly, I do not think that this information suffices to justify the conclusion that the relationship enhanced the risk to children. In my judgment therefore, the ET finding that in substance the dismissal was fair cannot stand. In my judgment, the dismissal was unfair for reasons other than the purely procedural one identified by the ET. The effect is that the findings on contributory fault and Polkey cannot stand.
- I would declare that the dismissal was unfair; would quash the finding of no compensation; and would remit the matter to Tribunal to determine compensation. However, since the other members of the court have taken the view that the ET was entitled to conclude that the dismissal was fair, the appeal has to be dismissed.
Lady Justice Black:
- The question of whether the dismissal of the appellant for gross misconduct was unfair and whether she should receive compensation in respect of it has three elements. The starting point is to consider whether, as a matter of substance, the dismissal was unfair. The ET found that the appellant was dismissed because of a genuine belief that her failure to disclose her association with a man who had been convicted of making indecent images of children was misconduct (§25 ET decision). It also found that there were reasonable grounds for this belief (§§26 and 27 ibid) and that the disciplinary panel was entitled to reach the decision to dismiss her (§29 ibid). The second element of the unfair dismissal question concerns the procedure adopted in handling the dismissal. Here, the appeal from the disciplinary panel's decision was not conducted fairly, although a Polkey reduction was in order to reflect the fact that there was a 90% chance that the dismissal would still have been upheld in a fairly conducted appeal (§30 ibid). The third element is the question of whether the appellant's own fault contributed to her dismissal, as to which the ET found that her contribution was 100% (§31 ibid).
- The appellant's unsuccessful appeal to the EAT centred upon the first of the above three elements and that is the focus of her appeal to this court too, set out in grounds 1 and 2 of the grounds of appeal. Ground 3 is directed to the Polkey reduction and ground 4 to the determination that the appellant was 100% to blame for her dismissal. However, grounds 3 and 4 are advanced for consideration only if the appeal on ground 1 and/or ground 2 is successful (see §41 of the Grounds of Appeal, and §48 of the appellant's skeleton argument).
- The appellant's argument is, in essence, that there was no obligation on her to disclose the circumstances concerning IS and that it could not be thought to be misconduct to fail to do so. Elias LJ would accept that argument and considers that the dismissal was therefore unfair as a matter of substance. Acknowledging that protecting children from sexual harm is of the utmost importance, he considers that "disclosure is plainly necessary if the risk to children in the school is enhanced" (§45 above). However, he takes the view that there was no evidence which justified a reasonable employer concluding that there was "even the potential for enhanced risk to the children at the school" (see §43 above) and that without that, there was no basis for imposing a duty of disclosure (§45 above). Mere association with a sexual offender does not, in his view, warrant a conclusion that the risk is enhanced. As he puts it, it "must first be demonstrated that the nature and circumstances of the relationship does indeed increase the risks from which the children at the school need safeguarding, or at least that there is a realistic basis for believing that it might."
- I fear that I disagree with Elias LJ's view about the risk involved for the children at the school and therefore as to the obligation on the appellant to inform the school of the situation concerning IS. In my view, her association with him did pose a risk to the children and she had a duty to inform the school of it so that steps could be taken to protect them. As a head teacher with safeguarding responsibilities, she should have realised this herself. The responses she received when she made enquiries of others should also have steered her in the right direction. In so far as disclosing the situation involved an interference with her private life under Article 8 ECHR, it was necessary for the protection of the children.
- In endeavouring to explain why I take this position, I will start with the provisions of the Education Act 2002, the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 which counsel for the respondent invited us to consider, notwithstanding that they had not been drawn to the attention of the ET or the EAT.
- The school at which the appellant was the head teacher was a maintained school at the material time. As Ms Hannett pointed out, section 175(2) of the Education Act 2002 therefore placed a duty on the governing body to make arrangements for ensuring that their functions relating to the conduct of the school were exercised with a view to safeguarding and promoting the welfare of pupils there.
- Ms Hannett invited us to have regard to the restrictions placed upon those involved in childcare by a combination of the Childcare Act 2006 ("the 2006 Act") and the Childcare (Disqualification) Regulations 2009 ("the 2009 Regulations"). The route through these is somewhat convoluted and it is unnecessary to set it all out here as the provisions are not directly applicable to the present case. What follows is therefore no more than a broad description without the fine detail. The 2006 Act and the 2009 Regulations set up a scheme which requires that certain providers of "early years provision" and "later years provision" (the latter being provision for under-eights) be registered, and expressly disqualifies certain people from registration. Although the requirement to register does not apply, by virtue of section 34(2) and section 53(2) of the 2006 Act, where the provision is made at a maintained school as part of the activities of the school, the upshot of a series of cross-referenced provisions is that those working in maintained schools can be affected by the disqualification regime. This is because, broadly speaking, people who are disqualified from registration must not provide early or later years provision or be directly concerned in the management of such provision.
- It is necessary to look a little more closely at who is disqualified from registration. Section 75 of the 2006 Act enables the making of regulations providing for particular categories of people to be disqualified; the 2009 regulations are such regulations. The list of those disqualified includes someone against whom an order has been made under section 104 of the Sexual Offences Act 2003, and therefore IS. Section 75(4) of the 2006 Act lays the ground for an expansion of the category of those who are disqualified to others who have not necessarily done anything wrong themselves but who have contact with those on the primary disqualification list. The 2009 regulations put this into practice by providing that a person who lives in the same household as a person who is disqualified from registration, or lives in a household in which such a person is employed, is also disqualified from registration. By virtue of section 76, a person who is disqualified must not provide early or later years provision to which the section applies or be directly concerned in the management of it. Section 76(3) provides that no person may employ a disqualified person in connection with the provision of early or later years provision. Criminal offences can be committed by contravening these stipulations (see section 76(4) – (8)).
- As I have said, there has been no suggestion that the appellant was actually disqualified by these provisions, although Ms Hannett did submit that whilst not caught by the statutory and regulatory scheme, the appellant came close to the boundaries of it and that in the circumstances a requirement that the appellant disclose the circumstances to the governing body so that it could assess the risks and put in place measures to combat them was modest. The importance of the provisions, to my mind, is in demonstrating the serious view that is taken of the risk to young children not only from sexual offenders themselves but also through others who are in contact with such offenders in certain ways. Parliament considered that there was sufficient risk where someone ("the associate") lived in the same household as such a person, or lived in a household where such a person was employed, to prevent the associate not only from providing the early or later years provision but also from being directly concerned in the management of it, on pain of criminal prosecution of the associate or his employer. Ofsted can waive the requirements of the regulations but the existence of that power does not, in my view, detract in any way from the message conveyed by section 76 and the 2009 Regulations. It may be noted that, in Ofsted's guidance on requesting a waiver from disqualification, it is made clear that relevant to the determination of a request is "any risks to children from allowing you to provide or work in early years and childcare provision". This underlines, I think, that the focus of the disqualification regime is firmly upon the safety of children.
- As Elias LJ says, counsel could not assist us as to the precise nature of the concerns lying behind the provisions. However, Ms Hannett did suggest examples of the ways in which risk to children may be enhanced by a head teacher living in the same household as an offender, namely because it would afford the offender greater access to the school premises or give him access to information about children brought home by the head teacher, whether on paper or on a computer. Elias LJ has proceeded on the basis that what lies behind the provisions is a fear that the associate may fall under the influence of the person who is principally disqualified. I would be inclined to view matters more widely than that. The restrictions do not surprise me in the light of my involvement in family cases. It seems to me that they probably reflect accumulating knowledge about sexual offending against children. Sexual offenders do not only pose a risk to children through influencing the adults around them, although that is one way in which harm can result. They may create and take advantage of opportunities to have contact with children in circumstances which appear innocent but enable them to abuse the children in question without in any way influencing the adults in charge of the children. I accept the validity of Ms Hannett's suggested examples of risk. I would observe also that offenders are not necessarily deterred by what others might consider to be clear risks of discovery.
- I turn now to the facts of this particular case and to the issue of whether the ET was entitled to take the view that although the appellant's contract of employment did not contain an express obligation to disclose information of the nature in question here, it was "obvious that for a head teacher to have failed to disclose such information to her governing body … is a matter of misconduct" (§26 of the decision of the ET, set out by Elias LJ at §28 above). It is important to tie the ET's assessment of this to the approach taken by the disciplinary panel which took the decision to dismiss the appellant. It can be seen from §4.25 of the ET decision that, in the statement in which it announced its decision at the disciplinary hearing, the panel proceeded upon the basis that the appellant's relationship with IS could pose a risk to the children attending the school and was concerned about her lack of insight into this, finding her failure to disclose the relationship showed a lack of understanding by her of both the real concerns of governors and the potential risks to children in her care. Mr Griffin explained in oral evidence to the ET (see §4.26, which is set out, as material, at §17 above by Elias LJ) that he had concluded that it should be obvious to the appellant that she needed to disclose information such as her friendship with IS once it was clear that he was to be charged and convicted of child sex offences. She was a head teacher and had the role of assisting the governing body, including in relation to the key issues of safeguarding and child protection, and he concluded that she should, and would, have known that any concerns or issues, no matter how small, which impacted on safeguarding and child protection should be disclosed.
- Mr Griffin was correct to focus upon the governing body's safeguarding and child protection functions. Under section 175 of the Education Act 2002 (see above), it had a statutory responsibility for safeguarding the pupils, and the appellant's job description required her to advise, assist and inform the governing body in the fulfilment of its responsibilities and to be accountable to it for, amongst other things, the safety of pupils (see §4.2 of the ET decision). It is relevant in addition that, as can be seen from §4.3 of the ET decision, in the applicable disciplinary rules of conduct, an example given of conduct which could give rise to disciplinary action was where an employee "fails to report any matter which it is their duty to report." Further context is provided by the ET's findings about the appellant's approach to disclosing the information to the governing body, including that she "recognised the importance of such information as far as her employment was concerned [as] demonstrated by her complaint when she expressed concern about the implications for her if the Trust disclosed it" (§26 of the ET decision) and "deliberately decided to withhold information from [the governing body] which she feared would have implications for her career" (§31 of the ET decision, set out in full at §31 above).
- In my view, it was open to the disciplinary panel to proceed upon the basis that the information about IS needed to be imparted to the governing body by the appellant in order that it could fulfil its obligations to safeguard the children from harm. As I see it, an association such as that which the appellant had with IS, although falling short of living in the same household or being "a relationship", did give rise to risk to children at the school. The nature of the risk from which the children needed safeguarding was not spelled out by either the panel or the ET but I do not think that it needed to be. It should have been apparent to the appellant as a head teacher with safeguarding responsibilities, and, if more was needed, the responses of others, such as the Probation Trust, should have caused her to reflect carefully upon her situation.
- The starting point must be that IS poses a risk to children in general because of his conviction, and I do not think it is difficult to see that his association with the head teacher may make him a specific risk to pupils at her school rather than just a general risk. For example, the arrival of a friend of the head teacher's at the school gate, or his attendance as a visitor at a school function, may pass without comment, as may apparently polite and friendly attempts by him to engage children in conversation. And, as Ms Hannett submitted, his friendship might provide access to details of the children. The response to that might be, "But the appellant would not permit any of that." That, however, would go to the question of what action should be taken in the light of the information about the association she had with IS, rather than to whether she had an obligation to disclose that information. Disclosure of the information was necessary, in my view, so that the governing body could consider what protective steps were required in the light of it. Armed with it, it could have laid down its own conditions with regard to matters such as IS's non-attendance at or near the school. It might have considered asking the appellant not to take work out of the school premises. It could have given consideration to whether other members of staff should be informed of the situation in order that they could keep an eye out and take appropriate steps if, for example, IS was seen at the school. Furthermore, although the 2006 Act and the 2009 regulations were not in mind in this case, now that their import is appreciated, a governing body in this situation would no doubt be aware that it needed the information in order to consider for itself whether, on the facts disclosed, there was a disqualification by association and whether a criminal offence would be committed by maintaining the employment of the head teacher concerned.
- I stress that I am in no way suggesting that someone in the appellant's position could no longer go on working in a school. The problem here arose because of the appellant's failure to tell the governing body the important facts. Moreover, in my view, it by no means follows inevitably that misconduct of this type justifies dismissal. Whether that is a response that the employer could validly take depends upon the precise circumstances of the case. Here, to the failure itself was added, as a feature in the disciplinary panel's evaluation, that the appellant was given the opportunity at the disciplinary hearing to reconsider her choice not to make disclosure but did not change her position. This was described as a "failure to recant" in §29 of the ET's decision and more detail of it was contained in §31 of the ET's decision which Elias LJ has set out above. The ET explained in §29 that in its view the dismissal of the appellant was within the range of reasonable responses of a reasonable employer, due regard being given to her previous good record in teaching, but taking into account both the failure to disclose and the failure to recant. I would not interfere with this evaluation by an expert tribunal.
- In the circumstances, I would dismiss the appeal. However, if my view as to grounds 1 and 2 does not prevail, I am in agreement with Elias LJ that the matter should be remitted for consideration of the impact of the appellant's conduct upon her compensation.
Lord Justice Floyd:
- It is beyond dispute that if a head teacher in the position of A becomes aware of facts which have the potential to place the children at a school at enhanced risk of harm, she would come under a duty to disclose those facts to those with responsibility for the safeguarding of the children at the school. If she failed to disclose the information to the school, the school would be entitled to treat her failure as misconduct, and take appropriate disciplinary action against her. If she discovers, as a first example, that a school employee has a conviction for a serious offence involving children of which the school is unaware, the question of whether she should disclose it to her employer answers itself.
- The problem presented by the present case is what should happen when the facts known to the teacher are less extreme. For one can easily envisage circumstances at the other end of the factual spectrum where a duty to disclose would not be engaged. By way of a second example, where a teacher has a distant relative in a different part of the country with such a conviction, there would probably not be a duty to disclose. It all depends on the detail of the facts known to the teacher, and whether a reasonable person with knowledge of those facts would consider that those facts presented an enhanced risk to the children.
- In my first example I consider that the risk of harm to children would be more or less self-evident, and it would not be necessary for the school to spell out in any detail the nature of the risk to the children which was envisaged, and which gave rise to a reasonable belief that the matter ought to have been disclosed. In my second example the school would, in my judgment, have to make out a case as to why it reasonably believed that the distant relative presented a risk to the children in its care, precisely because it is not self-evident that it would.
- My Lord, Elias LJ, concludes that the present case was a case in the second category, requiring some evidence from the employer to explain why the association with IS presented an enhanced risk. He concludes that there was simply no evidence which justified a reasonable employer concluding that there was even the potential for enhanced risk to the children at the school. My Lady, Black LJ, considers that it was more or less self-evident that A's association with IS gave rise to an enhanced risk to children at the school. She considers that although the nature of the risk from which the children needed safeguarding was not spelled out by either the panel or the ET, it did not need to be. She goes on to elucidate the way in which she considers A's association with IS could make him a specific risk to children at the school.
- Elias LJ has summarised the nature of the association A had with IS. They were not partners but the relationship was more than a financial one. They had been on holiday together and A was a named driver on IS' car insurance. A sometimes stayed over in the house which they had bought together as an investment because there were jobs which needed doing. The suggestion that A was being groomed by IS was expressly disclaimed by the school.
- There is not much beyond those basic facts to support the conclusion to which the panel and the Tribunals came. The inferences which the panel and the ET sought to draw from the enquiries which A herself made are not strong, given that it is not clear what criteria those whom she contacted were applying. The legislation to which we were referred is a straw in the wind, but the factual situation here is not one encompassed by it. The question, therefore, is whether, the basic facts concerning A's association with IS could without more form the basis of a reasonable belief that the association presented at least the potential of enhanced risk?
- The association between A and IS did not fall into a familiar category, such as cohabiting life partners, where the disclosure obligation would have, in my opinion, plainly arisen. It is true that the association had some of the features of such a relationship: shared activities, shared property, and occasional sharing of living space. Moreover there was some evidence that A showed a degree of loyalty to IS, having made a complaint on his behalf to others.
- Two points have in the end persuaded me that the decision of the panel and the ET were justified. Firstly, the focus in the present case is not on the question of whether harm will actually occur, but on whether the existence of the association can form the basis of a reasonable belief that there was the potential of an enhanced risk of harm. This is a very low threshold. I think the evidence of the nature of the association did cross that threshold.
- Secondly, it was not for A to appropriate to herself the decision as to whether her relationship with IS gave rise to a risk of harm. Her obligation to disclose exists in order to allow the school to take that decision for itself. That does not mean that the disclosure obligation extends to the case I have posed as my second example. However the present case was on any view much closer to the boundary between the two types of case, those which obviously present a risk and those which obviously do not. It is a case where some might think that there was a risk. A reasonable person would have asked themselves whether their (also reasonable) employer would have wished to know about the existence of the association with IS and his arrest and conviction so that the employer could determine whether any steps were necessary to protect the children.
- I have, in the end, concluded that the evidence of the association between A and IS was an adequate basis for the panel and tribunal to make the finding which they did. For those reasons, I would, like Black LJ, dismiss the appeal.
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