The Basildon Academies v Amadi (UKEAT/0342/14/RN)
All employment contracts contain an implied duty of fidelity. However, only fiduciaries are subject to a general duty to report their own misconduct to his or her employer. Nevertheless, an employee may be obliged to report their own wrongdoing if the terms of the contract require it (Ranson v Customer Systems Ltd).
In this case, the EAT held an employee was under no obligation (whether express or implied) to disclose allegations of sexual misconduct made against him whilst working elsewhere. (Beware: it's possible there was in fact an express duty to do so – but the employer was unable to prove this as it could not produce the relevant documents.)
The claimant worked as a tutor at the Respondent two days per week. His terms and conditions were set out in a letter dated 26 October 2011, which said that the letter, the terms and conditions of service document, and the Code of Conduct together formed his contract. A year later he started work at Richmond upon Thames College for the remaining three days per week. He did not tell the Respondent of this, in breach of his contract with the Respondent. A few months later, in December 2012, the College suspended him following his arrest after a female student claimed he had sexually assaulted her. In March 2013 the police told the Respondent that the College had suspended him. After a disciplinary hearing he was dismissed by the Respondent for failing to tell them of his other job, and for the allegations of sexual assault. He won a tribunal claim for unfair dismissal but with a 30% reduction in compensation for contributory fault.
The EAT found that the 26 October letter set out all his terms and conditions of employment, and that under these he was obliged to follow the Code of Conduct, to disclose any criminal convictions or cautions or he could be immediately dismissed, and under clause 4.1 of the Code, to disclose any impropriety committed by other colleagues or himself in relation to his employment by the Respondent. He had not been convicted or cautioned, and the sexual assault had allegedly taken place whilst he was employed elsewhere, so there was no breach of contract.
Clause 8 of the terms and conditions of service document referred to national standards of care. These would have been incorporated into the contract – but the Respondent was unable to produce the relevant national standards in 2011 (although did have the current version). If these imposed a duty to disclose allegations of impropriety elsewhere, then the claimant might have been in breach. Without the evidence of what they were, the tribunal could not make any finding of an express obligation to do so.
What to take away
The case demonstrates that employees who are (as usually the case) not fiduciaries, are not obliged to tell their employer of their own misconduct without an express provision in their contracts requiring them to do so. It would be good practice to include such an obligation, making clear it applies to relevant matters outside work as well. When a contract incorporates or refers to other documents, copies should be stored and previous versions should also be retained.