There are only a very small number of unfair dismissal cases which reach the Supreme Court, usually because the costs of pursuing them this far is completely disproportionate to the remedy if the claimant is to succeed. The recently reported case of Reilly v Sandwell Metropolitan Borough Council (2018) is one of those rare cases.
Ms Reilly was employed by the Council as the headteacher of a primary school. She had a close, but non-romantic, relationship with a man who had previously been convicted of making indecent images of children. She also owned a property jointly with him. Ms Reilly knew of his arrest and subsequent conviction, however, she did not disclose these facts to the Council.
The school where she worked became aware of her relationship with this man and of his conviction. Ms Reilly was challenged about this and did not deny it. She also said that there was nothing wrong in her having this person as a friend and that there was no obligation on her to tell the Council. The Council suspended her and subsequently dismissed her for failing to disclose these matters, and also for failing to acknowledge that she should have told them about her relationship and not accepting that it had been wrong of her not to do so.
The Claimant brought a claim of unfair dismissal, arguing she was under no duty to disclose the relationship. The Employment Tribunal rejected this and found the dismissal to be fair. Her appeals to the Employment Appeal Tribunal and the Court of Appeal failed, so she appealed to the Supreme Court.
The Supreme Court also rejected her appeal. They agreed with the lower courts that, given her position as a headteacher of a primary school, it was within the band of reasonable responses for the Council to dismiss in these circumstances. The important thing here was of course her role as a headteacher and the nature of the offence – it will be the exception when an employee having a friendship with a criminal will justify dismissal.
Interestingly, two of the Supreme Court judges did say that perhaps the existing case law on conduct dismissals (the lead case for which is BHS v Burchell (1978)) could be questioned – however, as the point was not argued by the parties in this case, that was not explored further. Some commentators have interpreted this as ‘laying down the gauntlet’ for the existing law to be challenged – but as so few unfair dismissal cases make it to the higher courts, we may have a very long time to wait before this point is considered again.
Cases like this do make you question the wisdom of pursuing claims this far. The maximum award for a claim of unfair dismissal is in the region of £95,000 (and, as the majority of that is capped at a year’s gross pay, for most people the maximum award is much lower), and therefore the costs of taking a case all the way to the Supreme Court are likely to be way in excess of the maximum value of the claim.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).