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A B C D E F G H I J K L M N O P R S T V W Y

Employment

Risks around stress in the workplace
Monday 21st May 2018

As you may be aware, the focus of this year’s Mental Health Awareness Week was stress.

According to research by the charity Mind from 2014 over 56% of those surveyed revealed that they found work very or fairly stressful. That is significantly higher than those reported in relation debt/ financial problems (38%), health (29%) or relationships (20%). This may come as no surprise to some, as we spend such a significant part of our lives at work and it can impact on many aspects of our lives.

The more recent HSE Work-related Stress, Depression or Anxiety Statistics in Great Britain 2017 defines work- related stress as “a harmful reaction that people have to undue pressures and demands placed on them at work”. The same statistics (which are based upon a Labour Force Survey) reveal that in 2016/17 the total number of cases of work related stress, depression or anxiety was 526,000 and that 12.5 million working days were lost due to work-related stress, depression or anxiety.

In its 2014 report, Mind also revealed that 95% of those surveyed who had taken time off because of stress had actually put down another reason, for example upset stomach or headache. This shows that people don’t feel comfortable telling their employer that they suffer from stress and how it impacts on them. This situation is supported by figures from a recent report by Business in the Community, The Mental Health at Work Report 2017 in which only 13% of employees feel they could disclose their mental health condition to their line manager and worryingly 15% of employees that had disclosed a mental health issue faced disciplinary procedures, demotion or dismissal.

If work is the cause of such levels of stress it’s highly likely that we will see an increase in the number of stress- related claims being brought.  Let’s briefly consider the types of claims that may be brought and what employers can do to reduce the risks of being on the receiving end of a successful claim.

Is stress a disability?

Stress can amount to a disability for the purposes of the Equality Act 2010 (“the Act”) provided it meets the definition of disability contained in section 6 and Schedule 1 of the Act. Many of you will be familiar with the section 6, but by way of refresher:

A person (P) has a disability if-

  1. P has a physical or mental impairment, and
  2. the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Stress impacts on individuals in different ways so determining whether an employee has a disability by reason of stress will necessarily depend upon the facts of each case and will involve an examination of the impact of their stress on the individual and whether it fulfils the above definition. The importance of whether an employee is disabled goes to whether an employee can bring a disability discrimination claim which has no cap on compensation and the employee can also claim for injury to feelings.

Are there any other claims that a stressed employee could bring?

Under common law an employer has a duty to take reasonable care for safety of employees and a duty to take reasonable care for the provision of safe place of work and safe system of work. An employer also has duties of care under legislation. Under the Health and Safety at Work Act 1974 an employer has a general duty to ensure as far as reasonably practicable the health, safety and welfare at work of its employees. Under the Management of Health and Safety at Work Regulations 1999 an employer has duties in relation to risk assessments and in relation to the risks identified by such a risk assessment it must apply “the principles of prevention” and provide information to employees about the identified risks.

If an employer breaches any of these duties there is a risk that an employee could bring a personal injury claim. They would need to establish that the employer has breached a duty of care owed to the employee; that this breach caused the employee injury and that an injury of that type, as result of the breach was reasonably foreseeable.

Employees suffering from work- related stress may also be able to bring claims for breach of the Working Time Regulations 1998, for example in relation to rest breaks/ periods, holidays and the 48 hour weekly working hours limit. Depending upon the circumstances an employee may also have potential claims for breach of contract and/ or potential constructive unfair dismissal, unfair dismissal and for harassment under the Protection from Harassment Act 1997.

So, how can you reduce the risks of stress- related claims?

The starting point is having a stress policy. As we have seen with recent issues surrounding sexual harassment, however, a policy on its own is not enough- it must be reflected in your culture. You must ensure that the policy is widely communicated to all staff and that it is followed.

One of the best ways to do this is to provide mandatory, regular training to all staff (particularly managers) on the policy and how to identify employees suffering from stress and stressful situations in the workplace and how to deal with them. In The Mental Health at Work Report 2017 referred to above 49% of managers said they would welcome some specific basic training in mental health. This training should also equip managers with the skills and empower them to have conversations with employees about stress and other mental health conditions.

You should also communicate with staff what they should do if they feel stressed. Employees need to feel confident to disclose to their employer that they are suffering from stress or indeed any mental health condition and know that they will be supported, not feel like it could be used against them in some way. And if you are dealing with performance/ capability issues where stress or other mental health conditions are involved or you suspect may be involved then tread carefully as you will need to consider whether the employee has the protection of the Equality Act and adjust your approach accordingly.

If an employee does notify you that they are suffering from workplace stress then you must not ignore it. You must take all reasonable steps to remove that workplace stress. Increasingly, however, you should not be waiting for employees to tell you that they are suffering from work- related stress- you should be proactive and alert to such issues from the point of view of safeguarding your employees’ wellbeing and getting the best from them as well as from the point of view of increasing productivity and looking to reduce the risk of successful stress- related claims.

If you’re looking for guidance and support on any of the issues raised in this article, then do not hesitate to contact any member of our Employment team and consider contacting Mind, our nominated charity for this year, who have a wealth of material and experience in this area.

 


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Interim Report on the Mental Health Act 1983
Wednesday 16th May 2018

In October 2017, the Government commissioned an independent review of the Mental Health Act 1983 (“the Mental Health Act”). The review panel consisted of Professor Sir Simon Wessely (the chair) and vice chairs Stephen Gilbert, Sir Mark Hedley and Rabbi Baroness Julia Neuberger. 

The sole focus was to consider and make recommendations on improving the legislation and practice around the Mental Health Act. The fundamental principle focus was around:-

             a)         More people being sanctioned; and

b)         The disproportionate number of people from Black minority ethnicities detained under the Act; and

c)         That the Mental Health Act may be out of date with the way the people think the mental health system should work now.

However, the most important goal of the review was to make the Mental Health Act work better for everyone.

In order to collect as much information as possible, the panel undertook the following:-

  1. Consideration of over 2,000 survey responses from service users and carers; and
  2. They listened to 320 people at workshops throughout the country; and
  3. Supported over 30 focus groups of service users and carers; and
  4. Attended over 70 meetings and events.

Fundamentally, the report also asked specialists and professionals to look at the information that was collated from the review.

In the interim report (recently produced), it focuses around information that has been drawn to date, and with a strong conclusion that the Mental Health Act needs to change so that people’s dignity is respected when they are sectioned, with a fundamental point that the Mental Health Act cannot achieve this on its own.

The interim report seems to focus on planning for the future, changing the rules to include people’s families and carers when a section situation comes about, and improving community treatment orders.

Interestingly, it also highlighted that the Mental Health Act has been used in some instances incorrectly, with people with learning disabilities or autism, and makes a suggestion that development of a law called the “Mental Capacity Act” in conjunction with the Mental Health Act, could assist with these areas.

Although the review is a positive first step, and the interim report is of some assistance, in my view there is so much more that still needs to be done to focus on the practicalities of mental health day to day, rather than just the technicalities of the law in place.

For more information on the topic please contact Laura Pointon on 0161 8368 824 or via email


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Investigations into gender pay gap reporting to start in June 2018
Thursday 3rd May 2018

The Equality and Human Rights Commission “EHRC” will begin its investigations into employers who have failed to comply with their gender pay gap (“GPG”) reporting obligations this June.

Noticeably, two weeks before the deadline for gender pay gap reporting (6 April 2018) it was widely publicised that nearly 6,000 companies were yet to submit their GPG report.  This is a disappointing approach from some businesses, which could easily have had an adverse impact on the PR, recruitment and internal employee engagement of a business.

The Chair of the Treasury Committee has stated that employers who do not report their GPG data within 28 days of receiving notification from the EHRC will face further action.

This further action, could be the EHRC issuing unlawful notices, written agreements and unlimited fines for failure to comply with the GPG deadline.  In addition, the EHRC will name and shame employers by uploading the results of its investigations on line which will also be available to members of the public.

The EHRC’s announcement follows recent criticism by Maria Miller MP, the Chair of the Women and Equality Commission who accused the EHRC of taking a “toothless” approach to enforcement by not using the full extent of its powers under the Equality Act 2010.

It will certainly be an interesting few months once the investigations are underway.  Will the EHRC actually utilise its enforcement powers as extensively as it is able, or will it take a more relaxed view?

My view, is that if the EHRC want businesses to take the GPG reporting requirements seriously, the breath of their sanctions need to be utilised.

To find out more on the topic, please contact Laura Pointon on 0161 836 8824 or via email


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Trial shifts and tribulations
Friday 27th April 2018

The hospitality sector has been under fire in recent months as a result of practices which, whilst common in the industry, are criticised as being practices which take advantage of lower paid workers.

One of the practices being called out is the hospitality sector’s reliance on trial shifts. As part of the recruitment process, it’s common to require potential recruits to be “put to the test” in the workplace. These “on the job experiences” can vary massively from business to business. Some businesses use it as an opportunity for the candidate to meet the team and may ask that the candidate complete a few simple tasks to demonstrate their skills. At the other end of the scale, some businesses require candidates to complete a full day’s work as part of the recruitment process; such work being unpaid. The well-known American restaurant chain, TGI Friday, hit the headlines last month when Unite the Union alleged that it failed to pay potential recruits for trial shifts of up to six hours.

You may also have seen that a recent Private Members’ Bill which aimed to prevent businesses from using unpaid trial shifts was talked out of Parliament. Whilst the Bill was talked out, it nevertheless demonstrates that attitudes are changing; that people are become increasingly alive to their legal rights at work and that the hospitality sector will continue, at last for the time being, to be under considerable scrutiny. Certainly questions are likely to be asked around this in the event that your business is subject to a National Minimum Wage inspection.

So, what is the law here? The law does not expressly prohibit trial shifts. After all, trial shifts are a useful way of assessing a candidate’s potential. If you want to know whether someone would make a good waitress, for example, there is no better way to check this out than to ask them to demonstrate their skills in a restaurant environment. The tricky bit comes, however, in assessing when an interview stops being an interview and becomes a candidate providing their services for the benefit of their would-be employer (i.e. work). If the trial shift strays into being work, then the individual will be classed as a worker and will have all the rights associated with that label, including the right to the national minimum wage.

Each trial shift will be different and the structure of that shift will be key in establishing whether or not it truly falls within the scope of the recruitment process or not.  As a general rule the longer the trial lasts and the greater the duties and responsibilities placed on the candidate, the more likely it is that the candidate would be deemed to be a worker. On the one hand, a candidate who is asked to carry out a short, supervised exercise without any customer interaction is unlikely to be deemed to be working. On the other hand, however, a candidate who is being let loose with customers is more likely to have strayed outside what can be properly construed as the recruitment process. 

Aside from the legal implications, reliance on trial shifts is also likely to continue to attract negative PR. Given the struggles, particularly in the casual dining arena at the moment, this is perhaps something which businesses will want to avoid and we understand that some operators in the sector have now abandoned trial shifts altogether.

To find out more on the topic, please contact Amy Anderson on 0161 836 8952 or via email.

 


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Failure to pay enhanced shared parental pay is not direct sex discrimination
Friday 13th April 2018

At a time when the government is trying to persuade more parents to take shared parental leave the Employment Appeal Tribunal (EAT) has decided that there was no direct sex discrimination when an employer did not pay a man on shared parental leave enhanced pay equivalent to the enhanced maternity pay it paid to a woman on maternity leave for the same period.

In overturning the Employment Tribunal’s (ET’s) decision, the EAT in Capita v Ali decided that focus had to be on the purpose for the respective types of leave and that to understand that involved an examination of the European and domestic legislation. As a result, the EAT decided that the purpose of maternity leave and shared parental leave are different. Shared parental leave is for the purpose of caring for the child whereas maternity leave is to protect the health and wellbeing of a woman during pregnancy and after childbirth. Addressing the issue that women on maternity leave care for their babies the EAT went on to state that, “that is not the primary purpose of such leave. By contrast, the purpose or reason for shared parental leave is for the case of the beneficiaries’ child.” The EAT emphasised the difference between the purpose of both types of leave when it said that the fact that “maternity leave and pay are provided not or not other than incidentally for childcare is illustrated by the fact that a pregnant woman is entitled to those maternity benefits before the birth of a child.”

Contrary to the ET’s decision, the EAT decided that the correct comparator for a man on shared parental leave was not a woman on maternity leave, rather it should have been a woman on shared parental leave. Furthermore, it found that payment of maternity pay at a higher rate was lawful as it amounted to special treatment afforded to a woman in connection with pregnancy or childbirth under the Equality Act

Working Families, who intervened in this case, raised a possibility, that “…after a period of 26 weeks (or ordinary maternity leave) the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave.” The EAT noted that while a “claim based on such facts may well give rise” to such a  comparison and highlighted that “The policy of European and domestic law has been to encourage participation of the father in care for his child” it is a matter for parliament; the Courts’ role being to interpret legislation, contracts and policies.

As matters stand, the EAT has made it clear that the pay and the level of pay associated with maternity leave and shared parental leave is inextricably linked to the purpose of that leave, which are both different.

Is this a thorn in the government’s side in its attempts to encourage more parents to take shared parental leave? Where employers who offer enhanced maternity pay aren’t legally obliged to offer the same level of pay to those on shared parental leave I think it’s unlikely that many more parents, will look to take shared parental leave.

So, will the government address this issue?

With the current focus on Brexit it seems unlikely that re- evaluating the purpose of additional maternity leave (the balance of 26 weeks after ordinary maternity leave) will be a priority for the government in the short term despite the potential impact it may have on encouraging more parents to take shared parental leave. As shared parental leave is one of the government’s mechanisms to encourage diversity in the workforce and to tackle the gender pay gap it may have to think of other ways to achieve those aims.

To find out more on the topic, please contact Susan McKenzie on 0151 600 3157 or via email


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Consultation on National Minimum Wage Rates
Friday 6th April 2018

In his July 2015 budget the then Chancellor, George Osborne, announced that the National Living Wage (the minimum wage rate payable to workers aged 25 and over) would rise by 2020 to £9 per hour, which was expected to be 60% of median earnings. The recent rise to £7.38 with effect from 1 April 2018 still leaves us some way behind that £9 target.

To get close to the former Chancellor’s target of £9 by 2020 will require significant annual increases in 2019 and 2020. Clearly, employers need some understanding of the likely rate increase to enable future financial planning.

Employees in lower paid roles have faced years of falling real wages since the financial crisis as living costs increase and campaigners are targeting annual shareholder meetings of major retailers in particular to put pressure on large employers so that improvements on rates of pay are at the top of the agenda. However, some employers, in particular those in the social care and hospitality sectors, have already expressed concern about the impact that the increases in NMW and National Living Wage (NLW) are having and are likely to have on their businesses. 

The Low Pay Commission, the independent body that monitors the effect of the minimum wage and provides advice to the government, has launched a consultation into minimum wage rates.

The focus of the consultation will primarily be on 3 areas:

  • what the minimum wage rates should be from April 2019 to allow it “to advise on the best path towards a target- 60 per cent of median earnings by 2020.” As part of this they would like views on:
  • whether the to the ‘on target’ rate for 2019- currently about £8.20 is affordable and what effects it would have;
  • what impact the NLW increase have had since introduction; and
  • the economic outlook generally.
  • whether as per a Taylor Review recommendation there should be a higher wage for non-guaranteed hours (e.g. zero and short hours contracts) as well as looking into a different way of tackling one of the perceived risks for those with uncertain and unpredictable work schedules, so- called ”one sided flexibility”; and
  • youth and apprentices rates.

The consultation closes on 1 June 2018. For more details see “Low Pay Commission consultation 2018"

If you have any queries about minimum wage enforcement or any issues that arise from the impact that minimum wage increases may have on your business then please don’t hesitate to contact either Joseph Shelston or you usual contact in the Brabners Employment team


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Employee with “pre- cancerous” condition was deemed to be disabled
Friday 6th April 2018

Those of you familiar with the Equality Act 2010 will know that under Schedule 1, paragraph 6 cancer is a “deemed” disability. In practice, this means that cancer is automatically to be treated as a disability and the individual is deemed to have a disability from the point of diagnosis without the need to satisfy the various elements of the statutory test.

In Lofty v Hamis (t/a First Café) the Employment Appeal Tribunal decided that the Claimant who had been diagnosed with a type of skin cancer which had been described in medical evidence as “pre- cancerous” and “in situ cancer” was suffering from cancer and was therefore deemed to be disabled under the Equality Act 2010.

By way of background, the Claimant brought a claim in the Employment Tribunal for unfair dismissal and disability discrimination. The Tribunal decided that she did not have cancer and that she was not “deemed” to be disabled. The Tribunal went on to consider whether the Claimant otherwise satisfied the definition of disability under the Equality Act and decided that she did not. This meant that she did not benefit from the protection afforded by the Equality Act 2010. The Claimant appealed against the Tribunal’s decision.

The EAT decided that the Claimant had cancer and was therefore deemed to be disabled.

The Tribunal was criticised for failing to demonstrate engagement with the medical evidence in its judgment. Medical evidence about the Claimant’s condition had been presented to the Tribunal for it to consider when deciding whether the Claimant was disabled. The condition was described by her GP in a number of ways, including, as being “a precancerous condition…” and in a supporting leaflet from leaflet from the British Association of Dermatologists as “…one type of the earliest stage of a skin cancer called melanoma… a type of melanoma called ‘in situ’ melanomawhich means that it has “…not had the opportunity to spread anywhere else in the body.”

In reaching its decision the EAT stated that, “When determining whether a condition satisfies the deeming provision of paragraph 6, there is no justification for the introduction of distinctions between different cancers or for an ET to disregard cancerous conditions because they have not reached a particular stage.” Further stating that, “…it requires only that the Claimant has cancer.” The judge also made it clear, however, that, “it is not sufficient that they might develop a relevant condition in the future.”

Whilst in this case of a particular type of skin cancer the diagnosis of pre- cancerous cells meant that the Claimant was suffering from cancer and was therefore disabled, the EAT made it clear that a diagnosis of pre- cancerous cells somewhere else in the body might mean something different.

So what does this mean for employers?

Practically speaking, while a condition labelled “pre- cancerous” might not always amount to cancer, medical evidence on the point will be critical. Employers should therefore err on the side of caution when dealing with an employee who has such a diagnosis, seek expert medical opinion and legal advice before taking any action against the employee.

We have been discussing issues like this and how to support employees with cancer in the sessions we have been delivering in partnership with Maggie’s Merseyside at Clatterbridge. To book a place at one of the workshops please click here

For more information on the subject please contact Susan McKenzie or a member of our Employment team


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New statutory pay rates in force
Friday 6th April 2018

It’s that time of the year when new statutory pay rates come into force.

As of 6 April 2018 statutory sick pay has risen from £89.35 per week to £92.05 per week.  

The rates for statutory maternity, paternity, adoption and shared parental pay increased from £140.98 per week to £145.18 per week with effect from 1 April. On the same date the new rates for the National Minimum Wage and the National Living Wage came into force. 

Find out more on the topic by contacting a member of our Employment team or Paul Ryman directly. 

 


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National Minimum Wage Enforcement
Wednesday 28th March 2018

National Minimum Wage enforcement is in the headlines again as well-known brands and companies have been named and shamed and fined for not paying staff the National Minimum Wage.

As those who attended our Employment Law Updates in late 2017/ early 2018 will know, there is a renewed government focus on employers who are failing to honour National Minimum Wage (NMW) laws. Sir David Metcalf, who heads up HMRC’s NMW enforcement team as Director of Labour Market Enforcement, is promising tougher action.

There is a recognition that action against employers is currently patchy. With the proportion of the workforce covered by the minimum wage set to increase from 5% to 14% by 2020 greater enforcement resources and tougher penalties appear inevitable.

So how is non- compliance currently enforced?

NMW is enforced by HMRC. Enforcement is initiated either by a complaint from workers or third parties or as a result of targeting particular low paying sectors. Officers can carry out inspections at any time, without providing a reason and can require employers to produce records and provide other relevant information.

Generally failure to pay NMW is dealt with by civil enforcement. If a Compliance Officer concludes that NMW has not been paid they may issue a notice of underpayment. This is a combined notice which will set out the arears of NMW to be paid together with a financial penalty to be paid to the state within 28 days of service. The notice is non-negotiable. A notice will be issued if there are arears outstanding, regardless of any explanation provided (e.g. if the underpayment was accidental) or where the employer has taken steps to partly repay the arrears.

What is the penalty for non- compliance?

The financial penalty has become increasingly severe, and has been increased twice in recent years. On 1st April 2016 the penalty was increased to 200% of the total NMW underpayment with an overall maximum penalty of £20,000 per employee. Like a parking fine, there is a 50% discount for complying with the notice within 14 days of service.

If the employer does not comply with the notice of underpayment, the enforcement officer can issue proceedings in the civil courts or employment tribunal to recover the sums due. If following judgment the outstanding NMW remains unpaid, HMRC will take steps to enforce the figure as a debt. If an employer is persistently non-compliant a criminal prosecution can be brought.

The employer can appeal against a notice of underpayment to an employment tribunal but must do so within 28 days of the issue date. The employer should not assume that they do not have to appeal because they have an ongoing dialogue with HMRC.

Naming and shaming: damaging to an employer’s reputation

Employers should act with particular caution considering the naming and shaming regime. Once the notice of underpayment is issued, or after an unsuccessful appeal, HMRC will refer the case to BEIS to consider naming the employer. The employer then has 14 days from HMRC’s case closure letter to make written representations against being named. If BEIS does not receive or does not accept the representations then the employer will be automatically named in a BEIS press notice.

Even those who have inadvertently paid less than the minimum wage will be named and shamed. BEIS will only refrain from naming an offending employer in limited cases, for example if a risk of harm to a named individual or family arises. It will not name an employer if it is not in the public interest to do so. Damage to the employer’s reputation alone will rarely - if ever - suffice as a reason for withholding them from the name and shame list.

Enforcement of NMW is unique - BEIS publically names and shames companies who pay staff below NMW. The list of named employers is widely reported. The names of those included on the list can be wide and varied; from large household names to hairdressers and bakeries. Over 1,000 companies have been named and shamed since October 2013 and the impact can be very serious to reputation.

What does the future hold for NMW enforcement?

The big question is likely to be whether the Director of Labour Market Enforcement obtains the additional resources he is asking for. If he does manage to secure extra resources, enforcement can be applied more consistently.

If low pay becomes a core issue across the political spectrum - it is key for Labour and the Trade Unions but also a point of focus in respect of the Conservatives’ commitment to the JAMs (those “just about managing”) - then the request for those resources may be actioned, particularly given that the increased penalties represent a valuable revenue stream at HMRC.

For more information on the topic please contact a member of our Employment team or Joseph Shelston on 0151 600 3162 or via email.


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Safeguarding: Supreme Court dismisses head teacher’s appeal
Thursday 22nd March 2018

In Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16, the Supreme Court considered an employment tribunal’s decision that a school had acted reasonably in dismissing a head teacher for failing to disclose her association with an individual convicted of possessing indecent images of children.  

The Facts

In 1998 Ms Reilly met Mr Selwood and they became close friends. In 2003 they bought a property as an investment in their joint names and set up a joint bank account out of which to pay the mortgage instalments.

In February 2009 the investment property was raided by the police and, Ms Reilly witnessed the arrest of Mr Selwood on suspicion of having downloaded images of children online. One month prior to Mr Selwood’s arrest, Ms Reilly had applied for the head teacher position at Sandwell. During the progress of her application, Ms Reilly never disclosed Mr Selwood’s arrest. Ms Reilly took up the post on 1 September 2009.

In February 2010 Ms Reilly became immediately aware of Mr Selwood’s conviction of making indecent images of children by downloading them onto his computer. However, she decided not to disclose it to the governing body of the school or to Sandwell. Instead her close relationship with Mr Selwood continued and, in April 2010 they went on holiday together.

In June 2010 Sandwell learned of Mr Selwood’s conviction and of Ms Reilly’s close relationship with him. Ms Reilly was suspended on full pay. Following the disciplinary hearing held in May 2011, a panel found Ms Reilly guilty of the allegation that, in having failed to disclose her relationship with a man convicted of sexual offences towards children, she had committed a serious breach of an implied term of her contract of employment, which amounted to gross misconduct. Ms Reilly was summarily dismissed. Her appeal in July 2011 was not upheld.

In September 2012 Ms Reilly’s claim for unfair dismissal was heard. The tribunal found:

  • that the reason for Sandwell’s dismissal of Ms Reilly was that she had failed to disclose her relationship with a convicted sex offender;
  • that Sandwell genuinely believed that the non-disclosure amounted to misconduct;
  • that there were reasonable grounds for Sandwell’s belief in that it was “obvious that for a head teacher to have failed to disclose such information to her governing body whether it is expressed in her contract of employment or not is a matter of misconduct”; and
  • that in light of Ms Reilly’s continuing refusal to accept that her non-disclosure had been wrong, her dismissal was within the range of reasonable responses open to Sandwell.

Ms Reilly unsuccessfully appealed against the tribunal’s decision in the Employment Appeal Tribunal, the Court of Appeal and finally, the Supreme Court.   

The Supreme Court was unanimous in dismissing Ms Reilly’s appeal. Lady Hale reasoned that Ms Reilly was in breach of her contract of employment by not informing her employers of her connection with Mr Selwood. There are many ways in which Mr Selwood might have, had he chosen to do so, used his friendship with Ms Reilly to gain access to the school’s pupils: not only through being allowed to visit the school but also through finding out information about the pupils.

Comment

Those who are guilty of sexual offences against children pose a risk to the safety of other children both directly and indirectly. Had Ms Reilly reported her connection to Mr Selwood, issues could have been identified and solutions found. It was the absence of full and frank disclosure that was cause for serious concern.

This case highlights the importance of schools including contractual provisions requiring teachers to be accountable for the safety of all pupils, in the fulfilment of their safeguarding responsibilities towards pupils.

For more information on the topic, please contact Elspeth Beatty on 0151 600 3114 or via email


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