In the recent case of The Basildon Academies –v- Amadi, the Employment Appeal Tribunal determined that an employee is not under a duty to inform their employer about allegations of misconduct against them, unless there is an express contractual term requiring them to do so.
Mr Amadi was employed by the Basildon as a tutor, working Thursdays and Fridays. During his employment with the Basildon, he also started working at a college three days a week. He was suspended from his role at the college following allegations by a female pupil that he had sexually assaulted her. He was arrested and bailed by the police.
Mr Amadi chose not to inform Basildon about the allegation and Basildon only became aware upon being alerted by the Police. Basildon suspended Mr Amadi and, following a disciplinary process, he was dismissed on the ground of gross misconduct, on the basis that: (a) he had deliberately failed to inform Basildon about the allegation of sexual misconduct; and (b) he had not informed Basildon that he was also working for the college (in circumstances where his contract of employment provided that he should notify Basildon of any other employment).
Mr Amadi brought a claim in the employment tribunal for unfair dismissal and succeeded in his claim; the tribunal found that failing to inform Basildon about the allegation of sexual misconduct did not amount to gross misconduct in the absence of any express term in Mr Amadi’s contract or any clear policy requiring him to disclose such information.
Basildon appealed to the Employment Appeal Tribunal, arguing (amongst other issued) that there was an implied contractual obligation on Mr Amadi to inform it of his alleged misconduct.
The EAT reviewed Mr Amadi’s contractual terms and explored whether the terms bound Mr Amadi to disclose an allegation of misconduct. His principal terms and conditions were set out in a letter, which referred to various other documents including his terms and conditions of service and Basildon’s code of conduct. The terms and conditions of service set out an employees’ obligations in respect of safeguarding and referred to the national standards and Basildon’s safeguarding policy.
The EAT found that the national standards referred to may have imposed a requirement on employees to disclose such allegations, whether they related to their place of employment or elsewhere. However, Basildon did not provide evidence about the national standards or its safeguarding policy to the tribunal. Without this evidence, the tribunal could not find that there was an express contractual obligation upon Mr Amadi to disclose the alleged misconduct.
The Basildon’s code of conduct did require Mr Amadi to disclose an impropriety committed by himself or other employees, However, it only related to Mr Amadi’s employment and therefore did not cover the allegations of sexual misconduct which rose in connection with his employment elsewhere. Whilst the code also contained provisions in respect of whistleblowing, which may require disclosure of an allegation of sexual misconduct, the EAT held that these may only be engaged in circumstances where an employee knew or had reason to believe that the allegation was true (which was not the case here).
Based upon the evidence available , the EAT agreed with the tribunal that there was no express contractual obligation upon MR Amadi to inform the Basildon about the allegation,. The Eat also held that, in the absence of an express contractual term, Mr Amadi was not subject to an implied contractual obligation to disclose the alleged misconduct. Accordingly, the EAT agreed that Mr Amadi’s dismissal was unfair in the circumstances.
It is important to note that this case is very fact specific – had Basildon provided evidence to the tribunal in respect of the national standards and its safeguarding policy, it may have been able to establish that there was an express contractual term requiring Mr Amadi to disclose the allege misconduct, in which case it is likely that his dismissal would have been deemed to have been fair.
The case acts as a helpful reminder to employers to ensure that contracts of employment include appropriate express terms requiring the timely disclosure of alleged misconduct and in ensuring such terms are drafted sufficiently broadly and flexibly to encompass relevant matters arising outside of their employment.