The EAT has recently held that there is no implied obligation requiring an ordinary employee to disclose their own misconduct, or allegations of such.
In the case of The Basildon Academies v Amadi (EAT 2014), Mr Amadi worked as a tutor for the Basildon Academies (“the Academies”) two days a week. Without telling his employer he started a second job working three days a week at Richmond upon Thames College (“the College”). He did not tell the Academies of his new job which was a breach of an express term of his contract of employment.
During the course of his employment at the College a female pupil alleged that he had sexually assaulted her and he was suspended by the College and subsequently investigated by the police. However, no other action was ever taken against him.
During the course of his suspension the police contacted the Academies who then also suspended him. Following a disciplinary hearing, the Academies dismissed him with immediate effect for two acts of gross misconduct: a failure to inform the Academies of his employment with the College and a failure to inform them of the allegation of sexual misconduct.
The Employment Appeal Tribunal upheld the decision of the Tribunal that he had been unfairly dismissed but made a 30% deduction from his compensation for his contributory fault in not informing the Academies of his employment with the College.
There was no express term in Mr Amadi’s contract with the Academies that he had to inform them of any misconduct (apart from misconduct during the course of his employment with the Academies) and no obligation to inform them of allegations of misconduct. The EAT upheld the Tribunal’s decision that there was no implied obligation upon an ordinary employee to disclose allegations of misconduct, in the absence of an express term requiring him to do so.
Impact on employers
While it has been clear for some time that a director and some senior employees do have an implied obligation to disclose their own misconduct, the position had been unclear in relation to more junior employees. This case has clarified that there is no such implied obligation for ordinary employees.
Employers should therefore include an express obligation in their employment contracts requiring employees to disclose their own misconduct (and allegations of misconduct) which occurs whether in the course of employment or outside it, if it may be relevant to their employment.