August 8, 2016

Dismissal of Senior Staff Justified for Non-disclosure of Key Personal Relationship

Published in the Independent Tertiary New Zealand (ITENZ) newsletter (August 2016)

In a case which will reassure all employers who operate in environments where they owe duties of care to their students, a UK school principal was justifiably dismissed for failing to disclose that she was in a relationship with someone who had been convicted on child pornography charges.

The principal, A, was in a relationship with IS, who was forbidden from having unsupervised access to children under 18. They did not live together but the relationship was “more than a mere financial one.”

The school subsequently found out about A’s relationship with IS. She was charged with gross misconduct. Her response to the charge was that she had sought advice prior to applying for the role, including from the police, which indicated that she did not need to disclose the relationship because she had not been involved in IS’s offending and was not under suspicion herself.

A was dismissed, and raised a claim of unjustified dismissal. She was unsuccessful, and then appealed, to the UK Court of Appeal.

The Court of Appeal found it should have been obvious to A that she needed to disclose the relationship to the school, particularly due to the nature of the charges and the fact that, in her role as principal, she was required to safeguard the school’s students. She was, in fact, aware of that duty, because otherwise she would not have made such detailed enquiries about the need for disclosure. The Court found that the relationship did give rise to risk to children at the school, and management of that risk was something that could have been determined by the school at the time A was applying for the principal’s job. However, A did not disclose this information to allow this to occur. Dismissal was a reasonable outcome, and A’s appeal was therefore dismissed.

This is a difficult case, where A argued that she herself had not been convicted of wrongdoing, and was complicated by the fact that the depth of her personal relationship with IS was far from clear – leading to her arguing (ultimately unsuccessfully) that there was not a sufficiently close connection between her relationship and her job to justify disclosure. The Court disagreed, and took into account that she was employed not just to do a job, but to care for students’ interests, and that it was ultimately up to her employer to decide if the employer was comfortable with the nature of A’s connection with IS.

Chen Palmer has particular expertise in assessing disclosure requirements, and advising on how these duties interact with employment obligations and obligations to your students. We can help you analyse and assess these tricky situations, and put plans in place to help avoid them occurring. If you would like to discuss this with us, please contact info@chenpalmer.com

This article has been contributed by Claire English, a Senior Associate specialising in Employment Law at Chen Palmer New Zealand Public and Employment Law Specialists.

This article provides general information and is not legal advice.

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