A v B Local Authority and C Governing Body of School [2016] EWCA Civ 766 is concerned with whether an ET had been entitled to find that a Head Teacher of a primary school had been fairly summarily dismissed for gross misconduct, i.e. putting the safety of children at risk, for failing to disclose to the school authorities her close personal relationship with a male (IS) convicted of making indecent images of children by downloading them onto his computer. The ET’s finding was upheld by the EAT (Wilkie J presiding) and has now been upheld by a majority in the Court of Appeal (Black and Floyd LJJ). Elias LJ dissented.
As regards the risk involved for the children at the school, and therefore the obligation on the Head to inform the school of the situation concerning IS, Black LJ said, at paragraph 56:-
“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.”
Black LJ further said:-
“65 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, … 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 … the ET’s decision … . The ET explained … 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.”
Floyd LJ said:-
- 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.”
“74. … The question … 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.”
Elias LJ dissented on the basis that, on the evidence, the ET was not entitled to find that a reasonable employer could properly have concluded that there was even the potential for an enhanced risk to children at the school. He said, at paragraph 45:-
“… 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.”
The above reference to the 2006 and the 2009 Regulations is to the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009.