In The Basildon Academies v Amadi the Employment Appeal Tribunal (“EAT”) has upheld the decision that an employee, in the absence of an express term in his employment contract, is not under an implied duty to disclose any allegations of sexual misconduct made against him to his employer.
Mr Amadi (“A”) worked as a part-time tutor at The Basildon Academies (“the Academies”). Whilst employed by the Academies, A entered into a zero-hour contract to work part time at Richmond-Upon-Thames College (“the College”) without notifying the Academies, resulting in a breach of the express contractual term to inform his employer of taking up employment elsewhere.
Whilst working at the College, A was suspended due to allegations by a female pupil that he had sexually assaulted her. Although A was arrested, he was not prosecuted and was not under any continuing bail obligation in light of the allegations. The police contacted the Academies and informed them of A’s suspension from the College. The Principal of the Academies held a disciplinary hearing. He decided that A’s failure to disclose his alternative employment and the allegation of sexual misconduct amounted to two acts of gross misconduct, and the Principal summarily dismissed him.
The Employment Tribunal (“ET”) held that A had been unfairly dismissed, but found that he had contributed to his dismissal by not informing the Academies of his new employment. As a result, the ET made a reduction of 30% to the compensation A was awarded (for not informing the Academies of his new employment). The Academies appealed the finding of unfair dismissal.
The EAT began by considering the express terms of A’s employment with the Academies. The Academies’ Code of Conduct set out that A was under an obligation to report impropriety committed either by himself or by another member of staff in relation to matters at the Academies but it did not state that this extended to allegations of impropriety made outside the Academies. The terms of A’s contract of employment referred to safeguarding and promoting the welfare of children, young people and vulnerable adults in accordance with the national standards and Academies’ policy, but the ET had not been provided with any evidence as to the national standards nor the policy, so these could not be taken into account.
Alongside express contractual terms there are a number of implied duties, including the duty of fidelity. This broad duty applies to all employees and includes the disclosure of misconduct. However, established case law provides that there is no obligation on an employee to disclose their own misconduct, unless in a very senior position, in which case, they would have a fiduciary duty to disclose. As a result, the EAT found that A had not breached his contract or any implied duties by failing to disclose the allegations made against him outside his work at the Academies.
It is important to note that this case may have been decided differently if evidence of the Academies’ policy and the national standards had been provided to the ET. Nonetheless, this case highlights to employers the importance of express contractual terms and that widely drafted terms setting out that impropriety outside of the workplace must also be reported to the employer will provide greater protection to employers.