Legal When do personal life events become workplace issues?

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A recent Supreme Court case is a lesson in the importance of being open with your employer, explains Rhian Radia

Employment law cases often explore the boundaries of when a personal life event becomes a workplace issue. While employees must be entitled to some element of privacy in connection with their personal life, there are some things that need to be disclosed in certain roles to avoid being dismissed.

It is a tricky decision. An employee may feel that disclosure of a criminal-related matter will inevitably lead to dismissal. However, it is sometimes the lack of disclosure that prompts the dismissal.

In Reilly v Sandwell, Mrs Reilly was a headteacher at a primary school who was in a close but rather unconventional relationship with Mr Selwood. Initially they were close friends, and five years later bought a property together as an investment. She did not live with him but sometimes stayed overnight.

When Selwood was convicted of downloading indecent images of children, Reilly decided not to tell the school. It then came to light another way, and resulted in her dismissal for gross misconduct for not disclosing it.

Reilly had taken up the headship position at the school before Selwood’s conviction. She kept quiet though all of this, even though she had witnessed his arrest.

When she was called to a disciplinary hearing, the allegation she faced was failing to disclose her relationship with a man convicted of sexual offences towards children, which amounted to a serious breach of her employment contract and gross misconduct. Her previous career track record was unblemished.

Reilly refused to accept that her relationship with Selwood might pose a risk to children at the school and that her failure to disclose his conviction was wrong. This refusal was seen as a ‘lack of insight’ making it inappropriate for her to continue to lead the school.

Reilly argued that she had been advised by police and probation officers that there was no need to disclose the relationship to the school. This, however, counted against her in the end as making such enquiries was seen to indicate that she knew she was subject to a duty to disclose. This apparently showed how close to the line even she recognised her case to be.

She brought a claim for unfair dismissal. After losing her case at the first-tier tribunal, she went on to appeal that decision by challenging whether she had a duty to disclose her relationship with Selwood to the school. The question of where such a duty lies is interesting; for the school, it was argued that it lay in the job description that had contractual force in that one of Reilly’s responsibilities was to be accountable to the governing body for the maintenance of the safety of all her pupils. Her employment contract also referenced a failure to report something that was her duty to report as a potential disciplinary matter.

This was too high a hurdle for Reilly to overcome before the Supreme Court. Selwood was seen to be a danger to children and his relationship with Reilly was seen as a potential risk to children at the school. That risk was seen to require assessment, which Reilly ought not to have carried out herself.

The court found that had she disclosed the relationship, she may not have been dismissed. It was suggested that in return for that disclosure, agreements and promises could have been reached; for example, not allowing Selwood to enter the school and Reilly not leaving pupil information in accessible locations. The likelihood of those logical and reasonable discussions happening remains a ‘what if?’

Knee-jerk reactions should be avoided in cases such as this, where the crime of an associate impacts on another’s employment. It is a difficult area and will, more often than not, not justify dismissal.

Employment contracts should clearly set out breaches of duties that amount to gross misconduct in that non-exhaustive shopping list in the termination section – the clearer the better to avoid situations like this.

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