We report on a case where a headmistress of some 23 years’ standing in the primary school system failed to disclose her relationship with a man who had been convicted of making indecent images of children.

The Employment Appeal Tribunal agreed that the decision to dismiss was fair, but their decision shows that the case was not clear cut as it might seem.

Background

The Childcare Act 2006 disqualifies teachers who live in the same household as other disqualified people. However, the Act does not apply to maintained primary schools such as the one in which the unnamed claimant in this case taught.

After taking views from various people about her situation, including from the police, the Probation Service and the Criminal Record Bureau, the head teacher decided that it was not necessary for her to make the disclosure and did not do so.

When the school governors found out, she was disciplined for not making the disclosure to them. She was ultimately dismissed for failing to disclose the relationship, and for failing to “recant” this during the disciplinary process. The school indicated that they may have been more lenient had she recanted.

The Employment Appeal Tribunal, by a majority of 2 out of 3 judges, decided that, even though the failure to disclose was strictly outside the Childcare Act, it came “close to the boundaries”. Although the school had not spelt out exactly what the risk to the children was, the EAT found that it did not need to do so, because it was clear that the relationship represented a general risk to children.

The judge who did not agree with this decision disagreed that there was a clear general risk to children arising out of the relationship. Mere association with a sex offender was not, in his view, sufficient to make it reasonable to assume there was a risk to children.

Implications

The EAT made it clear that cases such as this may result in a different outcome, as a Tribunal may not necessarily see a link between the relationship and a risk to children.