In The Basildon Academies v Amadi [2015] UKEAT/0343/14, the Employment Appeal Tribunal (EAT) had to consider whether, in the absence of an express contractual obligation, an employee was under an implied duty to disclose allegations of misconduct to his employer.

Facts

Mr Amadi worked as a cover supervisor on Thursdays and Fridays for The Basildon Academies (Basildon). His terms and conditions of employment were set out in a letter dated 26 October 2011, which stated that the letter, together with various documents referred to in it, comprised the terms and conditions of his employment.  The documents referred to include a Pay and Conditions Service document (a clause in which required Mr Amadi to notify Basildon of any other employment taken up by him during the course of his employment) and a Code of Conduct.  

In September 2012, Mr Amadi accepted a zero hours contract to work between Monday and Wednesday at Richmond upon Thames College (Richmond). He did not notify Basildon that he had accepted this position.  

Mr Amadi was suspended by Richmond in December 2012, following an allegation by a female pupil that he had sexually assaulted her. Mr Amadi was arrested and bailed. However, no prosecution took place.

Basildon was contacted by the police in March 2013 about Mr Amadi’s employment with them. They were informed of Mr Amadi’s suspension from Richmond and the reason for this. Basildon suspended Mr Amadi.  At a disciplinary hearing, Basildon concluded that Mr Amadi had deliberately decided not to inform them about his employment with Richmond and the allegation of sexual misconduct. Basildon concluded that both were acts of gross misconduct and they dismissed him without notice.

Mr Amadi brought a claim for unfair dismissal. Basildon argued that the Appendix to the Code of Conduct imposed on Mr Amadi an express obligation to report an allegation of impropriety made against him, even where the allegation did not concern anything that happened at Basildon.  

Employment tribunal decision

The employment tribunal held that Mr Amadi had been unfairly dismissed. However, he had contributed to his dismissal by not informing Basildon about his employment with Richmond, which was in breach of contract.  The tribunal accordingly reduced the compensatory award by 30%. Basildon appealed against the finding of unfair dismissal and the level of the compensatory award.

EAT decision

The EAT upheld the tribunal’s finding that Mr Amadi had been unfairly dismissed. In ascertaining the obligations on a party to an employment contract, the first step is to consider the terms of the contract itself.  In this regard, the EAT found:

  • The letter of 26 October 2011 comprised every express term of the employment contract
  • Mr Amadi was under a duty to comply with Basildon’s Code of Conduct
  • Mr Amadi was obliged to disclose immediately any conviction or caution for an offence (other than a minor motoring offence)
  • Failure to disclose such conviction or caution was a serious breach of contract, which could result in immediate dismissal
  •  Mr Amadi was under an obligation to report any impropriety committed by himself or by another member of staff. The EAT agreed with the tribunal, however, that this obligation only extended to an allegation made against him that he knew or had reason to believe was true. 

In the absence of an express term obliging Mr Amadi to disclose the allegations against him, the EAT had to consider whether there was an implied duty of disclosure.  Although more recent cases had created some confusion, the EAT judge was not aware of any cases that had altered the established position in the case of Bell v Lever Brothers Ltd [1932] AC 218 that an employee is not under a general duty to disclose their own misconduct to their employer.  

As there was no express or implied term requiring disclosure of the allegation, Mr Amadi had been unfairly dismissed.  

The EAT also upheld the tribunal’s decision to calculate Mr Amadi’s compensatory award on the basis of four years’ loss of earnings (subject to the 30% reduction for contributory fault mentioned above).  Whilst the four year period was arbitrary, the tribunal had no choice but to make such an assessment and reached a figure that was not based on nor demonstrated any error of law. 

Comment

The EAT acknowledged that this case was very much fact-specific and not necessarily of general application.    

The decision could have been different had all the relevant evidence been presented to the tribunal and the EAT.  In particular, the employer did not produce any national standards that applied to Mr Amadi at the time of his dismissal. These might have imposed on Mr Amadi an express obligation to report allegations made against him, not only at the school but elsewhere.    

The outcome could also have been different had Mr Amadi owed fiduciary duties to his employer.  An employee owing fiduciary duties to his employer (e.g. a director or senior manager) would have been obliged to disclose his own misconduct to his employer.

This decision does, however, confirm the importance of including an express obligation on employees to disclose their own misconduct in the employment contract. It is important to ensure that any such terms are drafted widely enough to encompass allegations of impropriety that relate to conduct outside the employment in question. This will be particularly important where the employee is a part-time employee or atypical employee (e.g. a seasonal employee), who may have more than one job.