Unfair dismissal: can an employee's attitude to their wrongdoing impact on whether their dismissal was fair?

In the case of Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 the Supreme Court held that it was fair to dismiss a school head teacher for failing to disclose a relationship with a person convicted of a serious criminal offence.

Background

The head teacher of a primary school, Ms Reilly, had been in a close relationship and owned a house with Mr Selwood, who was convicted of making indecent images of children. Although their relationship was not romantic and they did not live together, when the school became aware of their relationship and Mr Selwood's conviction, they suspended Ms Reilly on full pay and started a disciplinary process.

The allegation was that by failing to disclose her relationship with a man convicted of sexual offences towards children, Ms Reilly had committed a serious breach of an implied term of her contract, which amounted to gross misconduct.

At the disciplinary hearing Ms Reilly refused to accept that she should have disclosed her relationship to the school and that her relationship may pose a risk to pupils. The allegation was upheld and Ms Reilly was dismissed. Ms Reilly appealed the decision, which was dismissed by the appeal panel.

Claim for Unfair Dismissal

Ms Reilly brought a claim for unfair dismissal against Sandwell Metropolitan Borough Council who was the contractual employer of staff at the school. The Employment Tribunal held that, while the dismissal was procedurally unfair due to technical failures in the appeal process, the reason for dismissal was a fair reason.

Ms Reilly subsequently appealed the decision to the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court and her appeal was dismissed at all stages.

Reaction to disciplinary proceedings

The judgment of the Supreme Court found that the Tribunal was right to conclude that the school had acted reasonably in treating Ms Reilly's failure to disclose her relationship with Mr Selwood as a sufficient reason for dismissal.

In his judgment, Lord Wilson comments "For her [Ms Reilly's] refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, as it was reasonable to conclude, rendered it inappropriate for her to continue to run the school."

Lady Hale goes further, stating "…it is the absence of any acknowledgement of what she should have done which makes the decision to dismiss her reasonable…".

The indication therefore, is that it may not have been only the failure to disclose her relationship with someone convicted of a sexual offence, but also Ms Reilly's reaction to the allegation at the disciplinary hearing that made the reason for dismissal a fair reason.

When conducting a disciplinary process, employers may therefore be entitled to take into account an employee's reaction and response to the process. Where there is a serious concern and an employee cannot see that what they have done is wrong, then the employer may reasonably conclude that a warning is unlikely to have any effect.