Do Not Disturb

In last autumn's movie, A Fond Kiss, a nearly-divorced teacher at a Catholic school is sacked for setting up house with her Muslim boyfriend. Unfair dismissal? Let's look at what the courts say.

It is well established that conduct outside work can be justification for dismissal. However, there has to be a reasonable belief that it is causing problems in the workplace, or that it certainly will do.

For example, a teacher who grew cannabis in his garden was held to be lawfully dismissed because he taught teenage pupils on a daily basis.

A common issue for schools is the extra-marital relationship. There have been two law cases of dismissal which involved extra-marital relations. Both involved Roman Catholic schools.

One, an Irish case, involved a teacher who had become pregnant by a local business man who had left his wife and set up home with her.

Since the school and the participants were all located in a small town, the court took the view that this would damage the work that the school was attempting to do in infusing Catholic values into its pupils.

The other case involved a religious education teacher who had become pregnant by the local parish priest.

Judgement was given on the very narrow grounds that she had been dismissed "on account of her pregnancy". The issue of dismissal for her conduct was not addressed.

New legal challenges

However, times might be changing. Both of the above cases were decided before the 1998 Human Rights Act, which guarantees respect for private life.

Under the act, challenges have been made to the right of employers to act on conduct outside work. So far, such challenges have had limited success.

The courts have barely started to explore these issues but cases so far have made it quite clear that they regard sexual conduct in private, or managed discreetly, as private for the purposes of the Human Rights Act.

The question remains to be argued as to whether, when a teacher has a particular teaching responsibility, for example religious education in a church school, his or her conduct must bear witness to all the values he or she is teaching.

Under the School Standards and Framework Act 1998, schools of religious character do have the right "to have regard to any conduct which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified...in connection with the termination of employment." This also has been extended to independent schools.

This has not yet been tested in court, so it is not clear whether it refers only to dismissal or whether it can include other disciplinary acts. It also has to be established what conduct, which tenets and whether behaviour that is 'private' is included.

It is likely that the circumstances of each case will be decisive. For example, in the Irish case, the fact that the affair took place in a small town was a significant factor.

Had it occurred in London, and had the two participants lived in a different part of the city so that pupils would have been unlikely to find out, the result might well have been different.

Making the case

To have a strong chance in an employment tribunal a school should have a clear and consistent policy.

For example, one would expect that the personal relationships course in the school would actively promote a view that sexual relationships should only take place within marriage.

There would also be an explicit staff code of conduct which drew attention to the need to behave in a way that supported this belief.

In the absence of such an explicit policy, it might be difficult to make out a case for saying that a staff member had breached any specific or general prohibition on extra-marital affairs or that such an affair would be damaging to the work of the school or contrary to the tenets of the religion.

In short, any head becoming aware of an extra-marital affair must act with extreme circumspection and needs to have care that an action does not precipitate a constructive dismissal.

A teacher behaving in a way out of school that impacts on a school cannot simply say, "That's my business; keep your nose out."

Conversely, the school must be sure that the conduct is not private and does impact on the school before taking disciplinary action.

By Richard Bird, SHA's legal consultant