The fine line of a fair dismissal

12 December 2017

Employees dismissed after they have accumulated two years’ continuous service have the right to bring an unfair dismissal claim to an employment tribunal. If successful, they can be awarded compensation of up to a year’s lost income (capped around £95,000 for higher earners) from their employer or their job back.

All schools must make staff changes but it’s vital to achieve fairness when terminating employment so that the claim risk can be contained.

A fair dismissal has three aspects, all three are needed.

  1. a potentially fair reason;
  2. a fair process; and
  3. a decision which is reasonable in the circumstances. 

Looking at each of these in turn. Fair reasons for dismissal include the termination categories of redundancy, capability and misconduct. 

A fair process will involve, at a bare minimum, as an example for alleged misconduct:

  • an investigation;
  • a disciplinary hearing with prior notice of the breaches and clear evidence;
  • written confirmation of the decision; and
  • offering the employee both the right to appeal against the decision and the right to bring a companion to all the hearings.

Success in proving a termination decision is reasonable, in all the circumstances, can often depend on very fine margins. 

No better is this demonstrated than in a recent Court of Appeal decision. A head teacher with 23 years’ teaching experience was dismissed for not disclosing her close personal relationship with a friend, who was a registered sex offender and had been recently convicted of downloading indecent images of children. Whilst the head teacher’s relationship with the sex offender was platonic, they jointly owned an investment property where they both stayed overnight and went on holiday together. 

On discovering her friend’s conviction, the head teacher chose not to disclose it to the school’s Board of Governors. She had sought advice from a police officer, a probation officer, the Disclosure and Barring Service and governors at other schools from all of which she understood she was not required to disclose. The Childcare Act 2006 and Childcare (Disqualification) Regulations 2009, which require those working with children under a certain age to disclose whether they live with anyone holding a relevant criminal conviction, did not apply in these circumstances. 

The school found out about the head teacher’s association with the registered sex offender, followed a disciplinary process and then dismissed her for gross misconduct for failure to disclose it to them stating they considered it put the safety of the school’s pupils at risk.

The head teacher brought an unfair dismissal claim but lost. She appealed the decision all the way to the court of appeal. The court agreed there was no legal or contractual obligation on the head teacher to disclose the relationship and criticised the absence of any evidence to support the Board’s belief that it placed the school’s children at risk. However, even so, the court considered that:

  • the head teacher should have recognised that her association with a sex offender was a safeguarding issue; and
  • she did have a responsibility to disclose it to the Board for them to decide what, if any steps were needed to protect the children’s welfare. 

It was key to the school’s success that its disciplinary policy was clear that action would be taken against staff who failed to report when they had a duty to do so. For these reasons, the court agreed the school’s dismissal was fair. 

This case is a reminder that, before deciding to dismiss, all the circumstances of the case should be considered and the decision maker must have evidence to support the conclusions they make. 

The government’s statutory guidance ’Keeping Children Safe in Education’ published in September 2016 confirms that a head teacher’s key priority is the safety and welfare of anyone under the age of 18 who is under their care. They must always consider what is in the best interests of those children

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