A recent decision of the Supreme Court has highlighted the perils of failing to disclose safeguarding concerns to a school’s governing body.

Ms Reilly was the head teacher of a primary school. She was in a close relationship with Mr Selwood but it was not sexual and they did not live together. Mr Selwood was convicted of making indecent images of children. Ms Reilly had previously been unaware of his criminal activities. She failed to inform the school’s governing body of his conviction with the result that, when they learned of it, her employers summarily dismissed her.

Ms Reilly qualified as a teacher in 1987 and, prior to becoming the head teacher of the school, she had been a deputy head teacher in two other primary schools and an acting head teacher in two others. Her disciplinary record was exemplary.

Ms Reilly met Mr Selwood in 1998 and they became close friends. In 2003 they bought a property as an investment in their joint names and set up a joint bank account. Mr Selwood lived there without making any payment to Ms Reilly. She never lived there with him but she sometimes stayed there overnight. One such night was 24 February 2009 and early the following morning, she was witness to the arrival at the property of the police, to their search of it and to their arrest of Mr Selwood on suspicion of having downloaded indecent images of children online.

One month previously Ms Reilly had applied for the post of head teacher at the school. During the progress of her application and in the following months Ms Reilly never disclosed Mr Selwood’s arrest to Sandwell MBC.

Ms Reilly was duly appointed to be head teacher of the school and she took up the position on 1 September 2009.

On 1 February 2010 Mr Selwood was convicted of making indecent images of children by downloading them onto his computer. On a rating system under which level 5 is the maximum, the images were graded at levels 1 to 4. He was made the subject of a three-year community order; and of a sexual offences prevention order, which included a prohibition on his having unsupervised access to minors and a requirement to participate in a sex offender programme.

Ms Reilly became immediately aware of Mr Selwood’s conviction but in the following months she decided not to disclose it to the governing body of the school or indeed to the Local Authority.

In June 2010 Sandwell MBC learnt of Mr Selwood’s conviction and of Ms Reilly’s close relationship with him. It suspended her on full pay and in due course it summoned her to attend a disciplinary hearing to answer an allegation that, in having failed to disclose her relationship with a man convicted of sexual offences towards children, she had committed a serious breach of an implied term of her contract of employment, which amounted to gross misconduct.

A disciplinary panel upheld the allegation and, particularly in the light of her continuing refusal to accept that her relationship with Mr Selwood might pose a risk to pupils at the school and that her failure to disclose it had been wrong, it decided that she should be summarily dismissed.

On 11 May 2011 Sandwell MBC confirmed her dismissal with immediate effect. She appealed to an appeal panel which, in July 2011, dismissed her appeal.

Reilly then brought proceedings for unfair dismissal and sex discrimination. However, the employment tribunal found her dismissal not to have been unfair. The tribunal concluded that she had been dismissed because she failed to disclose her relationship with a convicted sex offender.

Section 175[2] Education Act 2002 provides that ‘The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school’

Ms Reilly’s job description included a requirement to “advise, assist and inform the Governing Body in the fulfilment of its responsibilities” and to “be accountable to the Governing Body for the maintenance of … the … safety of all … pupils”.

She was therefore under a contractual duty to assist the governing body in discharging its duty to exercise its functions with a view to safeguarding the pupils. Indeed the disciplinary provisions in her contract of employment identified a failure to report something which it was her duty to report as being an example of conduct which might lead to disciplinary action.

The tribunal found that Ms Reilly “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”.

The objective decision-makers on the panel, all school governors, ruled that the case fell on the side of the line which required disclosure. Mr Selwood was the subject of a serious, recent conviction. The basis of his sentence was that he represented a danger to children. His relationship with the head of the school created, to put it at its lowest, a potential risk to the children. The risk required assessment. It was not for Ms Reilly to conduct the assessment; it was a function of the governors.

As head teacher, she represented the eyes and ears of the governors in the school. Had she disclosed her relationship to them, it is highly unlikely that she would have been dismissed, still less that the tribunal would have upheld any dismissal as fair. Far more likely would have been the extraction by the governors of promises by Ms Reilly that she would not allow Mr Selwood to enter the school premises and perhaps, for example, that outside the school she would not leave information about pupils, for example stored electronically, in places where he might be able to gain access to it.

At the Supreme Court, Lord Wilson opined that the tribunal was entitled to conclude that it was a reasonable response for the panel to have concluded that Ms Reilly’s non-disclosure not only amounted to a breach of duty but also merited her dismissal. Her refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, as it was reasonable to conclude, rendered it inappropriate for her to continue to run the school.

In a supplemental judgment, Lady Hale commented that Ms Reilly was in breach of her contract of employment by not informing her employers of her connection with Mr Selwood. Ms Reilly had a duty to “advise, assist and inform” the Governing Body in the fulfilment of its safeguarding responsibilities towards the school’s pupils.

She added that those who are guilty of sexual offences against children pose a risk to the safety of other children both directly and indirectly. There are many ways in which Mr Selwood, should he choose to do so, might have used his friendship with Ms Reilly to gain access to the school’s pupils: not only through being allowed to visit the school but also through finding out information about the pupils.

Reporting the connection would have enabled a serious discussion to take place about how those risks might be avoided. Issues could have been identified and solutions found. It is the absence of that full and frank disclosure and discussion which was the cause for serious concern. It was also the absence of any acknowledgement of what Ms Reilly should have done which makes the decision to dismiss her reasonable, indeed some might think it inevitable.

Therefore, if there is any doubt about the disclosure of a safeguarding concern, this Supreme Court judgment sends out a clear and powerful signal that the balance should clearly fall on making the disclosure to the school’s governing body.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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