REUTERS | Navesh Chitrakar

Teachers and the disclosure of personal relationships: guilt by association?

“Nobody would dispute that protecting children from sexual harm is of the utmost importance, and disclosure is plainly necessary if the risk to children in the school is enhanced. But we are in a dangerous world if mere association with a sex offender warrants that conclusion being drawn.”

Those were the words of Elias LJ, in the minority, in A v B and another [2016] EWCA Civ 766 (paragraph 45). The majority of the Court of Appeal upheld a tribunal’s decision that a headteacher with a successful 23-year career had been fairly dismissed for putting the safety of children at risk. She had failed to disclose her relationship with a man (IS) convicted of making indecent images of children.

The headteacher (A) and IS had been friends for over ten years. While they were not romantically involved, they had bought a house as an investment, in which IS lived and in which A occasionally stayed. They had also been on holiday together. Having sought assurance from various sources, A concluded that she had not been under any duty to disclose this relationship.

While safeguarding children is extremely important, it is also potentially emotive. Teachers have been dismissed for standing by a spouse convicted of downloading indecent images of children and for refusing to give up a friendship with a teacher at another school who had been arrested for possessing such images.

School staff could perhaps be forgiven for believing that governing bodies (and others responsible for these issues) would perceive any association with someone in IS’s position to pose an unacceptable risk and that this would inevitably result in the termination of their employment. In the cases referred to above, risk to a school’s reputation and the perception and reaction of parents, were clearly motivating factors, as well as perceived risk to children.

In A’s case, the nature of the risk from which children needed to be protected was not identified by either the disciplinary panel or the tribunal. The majority of the Court of Appeal held that it did not have to be. Black LJ took the view that the fact of A’s association with IS, although falling short of living in the same household or being “a relationship”, posed a risk to children at her school (paragraphs 56 and 65).

Floyd LJ suggested that it would be easy to envisage circumstances where a duty to disclose would not be engaged: for example, a teacher with a distant relative in a different part of the country with such a conviction would “probably” not be under a duty to disclose. It would depend on the detail of the facts known to the teacher, and whether a reasonable person with knowledge of those facts would consider that they presented an enhanced risk to children. (Paragraph 70.)

Clear guidance for staff on when relationships or associations must be disclosed is desirable. Those responsible for making decisions in the light of that information on what, if any risk is posed, would also benefit from guidance.

Staff need to know when the duty arises. Is it when there is an allegation, arrest, charge or conviction? Or is it when that distant relative, seeking to make a fresh start, calls up to say they’re now living nearby and suggests meeting up? Decision-makers need to understand what, if any, risk an individual poses in the light of their offending behaviour. This may call for expert advice. How can they otherwise be expected to take appropriate steps to protect children?

Unfortunately these matters aren’t addressed in the new version of Keeping Children Safe in Education: Statutory Guidance for Schools and Colleges, which will come into force on 5 September 2016 (see Legal update, DfE publishes statutory guidance on keeping children safe in education).

It goes without saying that children must be protected. But if we are to avoid the dangerous world alluded to by Elias LJ, then it appears much clearer guidance is needed on when certain relationships must be disclosed, if staff are to be protected from the consequences of failing to do so.

 

Practical Law Employment Sam Gage

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