09 June 2015

In what circumstances should an employee disclose allegations about their own misdeeds or at least allegations of misdeeds? This was the issue considered by the Employment Appeal Tribunal in Basildon Academies v Amadi.

Mr Amadi worked as a tutor for Basildon Academies. In September 2012, he accepted a zero-hours contract to work at a different college. He did not inform the Basildon Academies about his other role, which was a breach of an express term of his contract. In December 2012, he was suspended by the college when a female pupil alleged that he had sexually assaulted her. Mr Amadi did not disclose this allegation to Basildon Academies. He was later suspended when the police became involved.

Basildon Academies decided to take disciplinary action against Mr Amadi on the grounds that he had deliberately not informed it about his secondary employment and deliberately not informed them about the sexual misconduct allegation. Basildon Academies concluded that both were acts of gross misconduct. He was dismissed.

Mr Amadi claimed that he had been unfairly dismissed and the Employment Tribunal upheld his claim. The absence of any clear obligation requiring Mr Amadi to inform his employer about the allegation resulted in the decision to treat such a failure as gross misconduct as unfair. The decision to dismiss therefore fell outwith the band of reasonable responses. Compensation was reduced by 30% because of his contributory conduct (in failing to advise about his other job).

Basildon Academies appeal against this finding was dismissed. The Employment Appeal Tribunal found that there was no express or implied contractual obligation requiring Mr Amadi to inform his employer that an allegation had been made against him while working with another employer. The Employment Appeal Tribunal also found that it would not be appropriate to imply a duty to disclose such an allegation in the particular circumstances. The dismissal was therefore unfair.

This raises interesting questions of express and implied terms within employment law. Employers who want to know about employees’ misdeeds when working for other employers will need to consider how such an obligation can be created within the employment relationship. It is unlikely that such an obligation will be implied and so a clear contractual term or policy document will need to be introduced that sets the position out clearly. This emphasises the importance of ensuring the employer has a bespoke suite of policy documents that is comprehensive.

Call a member of our team if you want to explore ways of protecting your organisation and to minimise the risk of an unfair dismissal finding.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.