A v B Local Authority (First Respondent) C Governing Body of School (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lady Justice Black,Lord Justice Floyd |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] EWCA Civ 766 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2014/1694 |
| Date | 19 July 2016 |
[2016] EWCA Civ 766
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
UKEAT/40/13/BA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lady Justice Black
and
Lord Justice Floyd
Case No: A2/2014/1694
and
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
Approved Judgment
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 [1987] 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.
The background
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 JH, 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 G, 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) RG and NB (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 RG, 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...
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