The recent case of Basildon Academies v Amadi looked at whether an employee was under any express or implied contractual duty to disclose to his employer allegations of sexual misconduct made against him while he was working elsewhere. Neither the employment tribunal or the EAT thought there was.
The facts in this case were that Mr Amadi is a citizen of Nigeria. He had two part time jobs, one with the Respondent in this case, Basildon Academies, for two days per week, and another part time job with Richmond upon Thames College. A pupil at Richmond alleged that Mr Amadi had sexually assaulted her. The allegation was reported to the police who arrested and bailed Mr Amadi. The Employment Tribunal was not told whether Mr Amadi was ever charged, but in any event, there was no further prosecution of him.
The police contacted Basildon to enquire about Mr Amadi’s employment with them, the police also disclosed the details of the complaint made against him by a pupil at Richmond, and the fact that he had been suspended by Richmond. Basildon suspended Mr Amadi. and went on to summarily dismiss him on the grounds that Mr Amadi had deliberately withheld from them that a) he had another job, and b) the allegation of sexual misconduct.
Mr Amadi brought a claim for unfair dismissal in the employment tribunal. It upheld the claim, as after analysing his contract of employment, it could not see that a failure to report his other employment could amount to gross dismissal, or that there was any express provision under which Mr Amadi was under any obligation to inform them about allegations made against him. The EAT agreed with the ET on the finding there was no express contractual provision. The EAT also considered whether there could be any implied provision that an employee owes to his employer a duty to disclose his own misconduct. The EAT concluded that there is no such implied obligation. Accordingly the EAT upheld the tribunal’s finding that Mr Amadi was unfairly dismissed.
This case reminds employers that if they feel it may be necessary to oblige employees to self-refer allegations of their own misconduct, they must include an express clause in their contract of employment with those employees. Such clauses may be of particular importance where employees are engaged in positions where there are safeguarding concerns.
The exception to this principle is where an employee owes fiduciary duties to his employer, such as a director or senior manager in a company. In this position, an employee would be obligated to report his own misconduct to his employer.
The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk