Supreme Court to rule next week on disclosure obligations of head teachers

The Supreme Court will next week (14 March) rule on the scope of a head teacher’s contractual obligation of disclosure and her right to a private life.

The background to the case of A (Appellant) v B (A Local Authority) (Respondent) – UKSC 2016/0170 was that A was a head teacher at a school for which C was at the time the governing body and for which B was the relevant local authority.

She was dismissed for gross misconduct in May 2011. It was alleged that she had wrongly failed to disclose her friendship with a man who had been arrested and was later convicted of making indecent images of children in breach of her contractual obligations.

A issued proceedings for unfair dismissal and sex discrimination, maintaining that she had been under no obligation to disclose the information.

The Employment Tribunal held that the decision to dismiss her had been fair as a matter of substance but there had been unfairness in the internal appeal process. No compensation was payable for this, as there was a 90% chance she would have been dismissed fairly in any event and her contributory fault was 100%. Her sex discrimination claim was dismissed and was not further pursued.

A appealed to the Employment Appeal Tribunal 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 then appealed to the Court of Appeal, essentially relying on the same arguments which failed before the EAT.

In A v B Local Authority & Anor [2016] EWCA Civ 766 the Court of Appeal by a majority (Lady Justice Black and Lord Justice Floyd) concluded that the ET was entitled to conclude that the dismissal was fair.

Lord Justice Elias considered that the ET was not entitled to find A’s dismissal fell within the range of reasonable responses. He would have declared that the dismissal was unfair; would have quashed the finding of no compensation; and would have remitted the matter to Tribunal to determine compensation.

At issue before the Supreme Court was the scope of A's contractual obligation of disclosure: whether the Employment Tribunal made appropriate findings to support the duty imposed and whether such duty was disproportionate given A’s right to a private life.

The case was heard on 12 December 2017 by a five-justice panel comprising Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Hodge.

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