Is an employee obliged to tell their employer of an allegation of sexual assault?
Associate, Veale Wasbrough Vizards
Not necessarily, if there is no express or implied contractual obligation to do so, held the Employment Appeal Tribunal (EAT) in Basildon Academies v Amadi.
Mr Amadi was a part time tutor in Basildon Academy (the Academy) who also worked part time at another college (the College) for a different employer. During his employment with the College a pupil made an allegation against him of sexual assault. Mr Amadi did not inform the Academy about this allegation even though it had clear implications as to his suitability to work with the students at the Academy. The allegation was brought to the attention of the Academy some three months later by the Police.
The Academy subsequently dismissed Mr Amadi for gross misconduct on the basis that, among other things, he had withheld the sexual assault allegation. The Academy asserted that he had acted in breach of a duty to disclose his alleged wrongdoing.
Mr Amadi brought a claim for unfair dismissal. The Employment Tribunal (ET) found that the terms and conditions of Mr Amadi's employment did not include an express obligation to report the allegation, nor could a term be implied into his contract requiring him to disclose the alleged wrongdoing connected with his other employment.
The ET therefore held that in the absence of an express contractual duty to disclose the allegation, the dismissal was not a reasonable response by the Academy and was unfair.
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This case is a useful reminder to all employers that employees are not under an implied duty to disclose allegations of misconduct against them. Employers should ensure that their employment contracts, policies and handbooks include express terms to address any disclosures that would be expected or required from employees. This is particularly relevant to any allegations that will directly impact on the employee's suitability to continue undertaking their role or the adversely affect the reputation of their employer. Had the Academy been able to produce evidence of a contractual obligation to disclose the allegation supported by a disciplinary policy confirming that a failure to comply would amount to gross misconduct, the ET may have found Mr Amadi's dismissal to be fair.