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Teacher under no implied duty to disclose allegations of sexual misconduct

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Teacher under no implied duty to disclose allegations of sexual misconduct

'in the absence of clearly drafted express contractual terms, employees are not generally under an implied duty to disclose their own alleged misconduct'

Ian Wasserman

Senior Associate

In the recent case of The Basildon Academies v Amadi, the Employment Appeal Tribunal (EAT) held that a teacher was under neither an express nor an implied duty to disclose to his employer an allegation of sexual misconduct made outside of that workplace.

Although there is an implied duty of fidelity (a requirement that an employee has regard to their employer’s interests) in all employment contracts, employees are not under a general duty to disclose their own misconduct to their employer, or for example the fact that criminal allegations have been made against them. The exception to this is where an employee owes fiduciary duties to his or her employer, for example as a senior manager or a director.

In 2011 Mr Amadi started working, two days a week, as a tutor at The Basildon Academies. In September 2012 Mr Amadi subsequently began teaching three days a week at Richmond upon Thames College. Mr Amadi did not inform The Basildon Academies of this new employment with Richmond upon Thames College which was in breach of an express term in his contract with The Basildon Academies that required him to notify The Basildon Academies if he undertook employment elsewhere.

In December 2012 Mr Amadi was suspended by Richmond upon Thames College as a result of an accusation made by a female pupil of sexual assault. Mr Amadi was arrested and bailed, although a prosecution never followed.

Whilst investigating the allegations, the police contacted The Basildon Academies in March 2013. The Basildon Academies, learning of the allegations and of Mr Amadi’s other employment for the first time, suspended him. Following a disciplinary investigation Mr Amadi was dismissed for gross misconduct on account of him not informing The Basildon Academies of his other employment or of the allegations made of sexual misconduct.

Mr Amadi issued a claim for unfair dismissal against The Basildon Academies in the Employment Tribunal.

The Employment Tribunal held that Mr Amadi had been unfairly dismissed but reduced his compensation by 30% as a result of his failure to inform The Basildon Academies of his employment with Richmond upon Thames College, which he was contractually obliged to do. The Basildon Academies appealed.

Earlier this year the EAT dismissed The Basildon Academies’ appeal.

Whilst the EAT accepted that Mr Amadi was under an express contractual obligation to inform The Basildon Academies of any other concurrent employment, there was no express duty requiring him to disclose the allegation of sexual misconduct. There were express contractual terms that applied to Mr Amadi and required him to disclose his own misconduct, or that of others but they only applied to conduct that had taken place during the course of Mr Amadi’s employment with The Basildon Academies.

The Basildon Academies failed to convince the EAT that Mr Amadi was under any implied duty to disclose allegations of misconduct made outside of that workplace. The EAT relied on the established position that the implied duty of fidelity does not extend to require an employee to disclose their own misconduct in the absence of an express term. Consequently, the EAT’s finding of unfair dismissal was upheld.

Although this case was fact specific (and acknowledged by the EAT as not necessarily being of general application), it does highlight that in the absence of clearly drafted express contractual terms, employees are not generally under an implied duty to disclose their own alleged misconduct. In particular, this will be the case where the alleged misconduct takes place outside of that employment.

This case highlights the importance of written terms of contract, and for employers to check their contracts of employment, handbooks and policies to ensure that employees are required to notify them if they are charged with a criminal offence, or if serious allegations are made against them whether in the course of their employment or outside of it. Clearly it is equally important to ensure that any failure to comply with such notification requirements is expressly deemed to be an act of gross misconduct in its own right. As in this case, this would appear all the more crucial when employees are working with children or young adults.

20 Oct 2015

Ian Wasserman