Veale Wasborough Vizards
22 JUN 2015
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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On appeal by the Academy, the EAT upheld the ET's decision. The EAT agreed that Mr Amadi was not in breach of any express contractual term. It also considered that while there may be circumstances in which an employee will owe an implied duty to disclose his misconduct, this was not automatically implied and it was not the case that "an employee must disclose to his employer, in the absence of an express contractual term requiring him to do so, an allegation however ill-founded of impropriety against him". On this basis, the EAT concluded that Mr Amadi's dismissal for not making the disclosure had to be unfair.
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.