29 Mar 2018
If someone told me that an employer had any right to know with whom an employee lived or had a relationship, I’d be inclined to say no way. Surely this cannot be right and would amount to a breach of the basic rights enshrined in our law providing respect for privacy and family life?
However, I read a case this week which casts major doubt on that view. Ms R was a head teacher at a primary school. She had a close relationship with a bloke (not a romantic one, but she stayed over from time to time – in an investment house that they bought jointly - and she was on his car insurance). The trouble was that this man had a conviction concerning the making of indecent images of children.
What does this have to do with Ms R or her ability to do her job one might ask? Well, for starters she was a head teacher in a primary school where young children are supposed to go to learn in a safe environment. She was aware of his arrest and ultimate conviction for the child image offences. She did not disclose this to her employer, nor did she accept, when questioned about it, that it was wrong of her not to disclose this. She was dismissed as a result. The employment tribunal found that her dismissal was within the band of reasonable responses. She appealed all the way from the Employment Appeal Tribunal, to the Court of Appeal through to Supreme Court. Each of these courts agreed with the original tribunal decision.
The basis of the dismissal was that, as head teacher, she had a duty to assist the governing body of the school in discharging its duty to safeguard the children. She ought to have realised that her relationship could have posed a risk to the children and as such should have allowed the governors to make an assessment. She didn’t do so. Note that it wasn’t the relationship with the sex offender itself that got her sacked, but rather her failure to disclose it and even her failure to recognise that she ought to have disclosed it. She clearly had thought about the dodgy nature of the issue as she took advice from the disclosure and barring service, as well as governors from another school.
The tribunal accepted the school’s position that it was “obvious” that where a head teacher failed to disclose such information (whether or not her contract required her to do so), it was misconduct.
As with all cases concerning the implications of criminal convictions away from work, the employer’s right to take action will largely depend on the nature of work which they pursue, the nature of the employee’s role within that organisation and any other relevant considerations. For example, some legislation was cited in this case concerning legislation which had recognised that sex offenders can pose both a direct and indirect danger to children.
If in doubt about criminal convictions and employment, take advice before throwing the book.