Reilly v Sandwell Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lady Hale,Lord Hughes,Lord Hodge,Lord Carnwath |
| Judgment Date | 14 March 2018 |
| Neutral Citation | [2018] UKSC 16 |
| Court | Supreme Court |
| Date | 14 March 2018 |
[2018] UKSC 16
Lady Hale, President
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Hodge
Appellant
Martin Palmer
(Instructed by Spencer Shaw Solicitors)
Respondent
Sarah Hannett
Anna Bicarregui
(Instructed by Sandwell MBC Legal Services)
Heard on 12 December 2017
( with whomLord Carnwath, Lord HughesandLord Hodgeagree)
Ms Reilly, the head teacher of a primary school, is in a close relationship with Mr Selwood but it is not sexual and they do not live together. Mr Selwood is convicted of making indecent images of children. Ms Reilly has previously been unaware of his criminal activities. She fails to inform the school's governing body of his conviction with the result that, when it learns of it, her employer summarily dismisses her. The Employment Tribunal (“the tribunal”) decides that, save in an irrelevant procedural respect, her dismissal has not been unfair. Should the tribunal's decision stand?
The school is now an academy but at the relevant time it was maintained by Sandwell Metropolitan District Council (“Sandwell”), which is the respondent to Ms Reilly's appeal to this court. Before the tribunal the school's governing body was a second respondent to her claim but, when it became an academy, the governing body ceased to exist and its liabilities were transferred to Sandwell. This court orders an end to its ghostly presence as a second respondent to the appeal.
Ms Reilly appeals against an order of the Court of Appeal dated 19 July 2016, [2016] EWCA Civ 766, [2016] IRLR 779, in which she was referred to as “A” and Sandwell was referred to as “B local authority”. By a majority (Black and Floyd LJJ, the dissentient being Elias LJ), the court dismissed Ms Reilly's appeal against an order of the Employment Appeal Tribunal (“the EAT”) dated 20 February 2014. The EAT (Wilkie J presiding) had dismissed Ms Reilly's appeal against the order of the tribunal disseminated on 2 November 2012 that, save in the irrelevant procedural respect, her dismissal had not been unfair.
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 out of which to pay the mortgage instalments. 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. Thus it was that, 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 in the following months Ms Reilly never disclosed Mr Selwood's arrest to Sandwell. It is possible that at first she considered him to be innocent of the allegations against him. But there clearly came a time, not identified in the evidence, when she realised that he was guilty and likely to be convicted; and nothing turns on when that time came.
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 Sandwell. Her close friendship with him continued. In April 2010 they went on holiday together. He named her as an authorised driver on his motor insurance policy.
In June 2010 Sandwell 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.
In May 2011 the disciplinary hearing took place. The panel consisted of the chair of the governors of another primary school and two governors of the school. Ms Reilly was represented by a solicitor. The panel upheld the allegation to which I have referred 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 confirmed her dismissal with immediate effect. She appealed to an appeal panel which, in July 2011, dismissed her appeal.
In August 2011 Ms Reilly presented a claim to the tribunal that her dismissal had been unfair. The substantive hearing of her claim took place over four days in September 2012, at which Ms Reilly had the benefit (which she has continued to have) of representation by Mr Palmer.
In its written judgment the tribunal analysed with care the evidence placed before the disciplinary panel. It noted that in her written statement to the panel Ms Reilly had said that in 2009 and 2010 she had asked numerous people, including a police officer, probation officers and officers of other local authorities, whether she had a duty to disclose her relationship with Mr Selwood to the governing body and that their answer had been that she had no duty to do so. The tribunal found, however, that her evidence to it in this regard had been unclear; it noted that two of the probation officers identified in her statement had given statements in which they had denied that their advice to her had been as she had alleged; and it observed that, shortly after Mr Selwood's conviction, a third probation officer had, by letter, advised her that it would be wise to disclose her relationship with him.
The tribunal found
a) that the reason for Sandwell's dismissal of Ms Reilly was that she had failed to disclose her relationship with a convicted sex offender;
b) that Sandwell genuinely believed that the non-disclosure amounted to misconduct;
c) that there were reasonable grounds for Sandwell's belief in that it was “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”; and
d) that, notwithstanding Ms Reilly's exemplary disciplinary record but in the light, among other things, of her continuing refusal to accept that her non-disclosure had been wrong, her dismissal had been within the range of reasonable responses open to Sandwell.
Nevertheless the tribunal proceeded to find that the hearing of Ms Reilly's appeal by the appeal panel had been so unsatisfactory as to render her dismissal procedurally unfair. In the light, however, of its conclusion that, even had the hearing been satisfactory, there was a 90% chance that her appeal would still have been dismissed, it directed that her compensation be reduced by 90% in accordance with the approach indorsed in Polkey v A E Dayton Services Ltd [1988] 1 AC 344. But the tribunal went further: pursuant to section 123(6) of the Employment Rights Act 1996 (“the Act”), it also concluded that she had contributed to her dismissal by blameworthy conduct and it assessed her contribution at 100%. Although, including in her appeal to this court, she has challenged the tribunal's conclusions in both these respects, Ms Reilly accepts that the challenge would become live only if the court were to set aside the tribunal's decision that, substantively, her dismissal was not unfair.
A tribunal's inquiry into whether a dismissal is unfair is governed by section 98 of the Act. The first part of the inquiry, governed by subsections (1) to (3), is whether the employer has shown both the reason for the dismissal and that the reason relates to the employee's conduct or falls within another part of subsection (2) or otherwise justifies dismissal. In this case the employer showed the reason for the dismissal, namely the non-disclosure, and that it related to Ms Reilly's conduct.
The case turns on the second part of the inquiry, governed by subsection (4) of section 98 of the Act. It provides that the tribunal's determination of whether a dismissal is unfair
“(a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating [the reason shown by 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.”
A tribunal's inquiry into whether the employer acted unreasonably in treating the reason as sufficient for dismissal seems simple enough in principle, albeit no doubt often difficult in application. The...
To continue reading
Request your trial
-
Ms N Daoud (maiden name Boukhannouche) v Bvlgari (UK) Ltd: 2206904/2018
...the decision to dismiss, in the light of the results of that investigation, is a reasonable response. 130. In Reilly v Sandwell MBC [2018] UKSC 16 at paragraph 16, Lord Wilson observed “In this case the employer showed the reason for the dismissal, namely the nondisclosure, and that it rela......
-
Mr Daryl Robertson v Sainsburys Supermarkets Ltd: 4121888/2018
...substantial merits of the case.” 69. That section was examined by the Supreme Court in Reilly v Sandwell 25 Metropolitan Borough Council [2018] UKSC 16. In particular the Supreme Court considered whether the test laid down in BHS v Burchell [1978] IRLR 379 remained applicable. Lord Wilson c......
-
Mr M Harvie v Scottish Ambulance Service Board: 4105124/2022
...of the case.” 79. The terms of sub-section (4) were examined by the Supreme Court in Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16. particular the Supreme Court considered whether the test laid down in BHS v Burchell [1978] IRLR 379 remained applicable. Lord Wilson considere......
-
Mr A Bowie v Alltec Construction Ltd: S/4121035/2018
...S/4121035/2018 50. Page 13 Section 98 of the 1996 Act was examined by the Supreme Court in Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16. In particular the Supreme Court considered whether the test laid down in BHS v Burchell [1978] ICR 303 remained applicable. Lord Wilson c......
-
Dismissal Of Head Teacher For Failure To Disclose Relationship Was Fair
...Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 the Supreme Court considered whether it was fair for a school to dismiss a head teacher who was associated with someone who had been convicted of possessing indecent images of Ms Reilly was a head teacher at a primary school. She......