Does an employee have a duty to disclose their own misconduct?

Apparently not according to the recent EAT (Employment Appeal Tribunal) decision in the case of Basildon Academies v Amadi UKEAT/0343/14.

Most people would assume that employees are under a duty to disclose allegations of misconduct against them (particularly when they involve possible safeguarding issues). However, the recent EAT decision in the above case may well surprise those of you reading this. In this case the EAT considered whether an employee was under a duty (express or implied) to disclose allegations of sexual misconduct to his employer whilst working for another education provider at the same time.

Facts

Mr Amadi worked as a tutor for The Basildon Academies (the Academies) for a couple of days per week and his terms and conditions of employment were set out in a number of documents (including a letter, terms and conditions of service, a code of conduct and reference to national standards in relation to safeguarding children, young and vulnerable adults).

During his engagement with the Academies, Mr Amadi also accepted a zero hours contract to work three days per week for Thames College (the College). Mr Amadi did not inform the Academies that he was also engaged by the College which was in breach of an express term of his contract.

In December 2012, Mr Amadi was suspended by the College following accusations from a female pupil that he had sexually assaulted her. He was subsequently arrested and bailed by the police and it was not known whether he was charged. No prosecution took place in relation to the allegations.

In March 2013, the Academies were contacted by the police and they informed the Academies that Mr Amadi had been suspended by the College and explained that his suspension related to allegations of sexual misconduct. Following this, the Academies subsequently suspended Mr Amadi who was later dismissed following a disciplinary hearing. Mr Amadi was dismissed by the Academies with immediate effect in July 2013 for failing to inform the Academies of his employment with the College and failing to disclose the allegations of sexual misconduct. Mr Amadi issued a claim in the Employment Tribunal and the tribunal held that he had been unfairly dismissed. It should be noted that they reduced his compensation by 30% as a contribution towards him failing to confirm that he was employed by the College.

The Academies appealed the decision.

The EAT’s decision

Initially the EAT considered arguments as to whether Mr Amadi was under an express duty to disclose the allegations of sexual misconduct (as it was accepted that he was under an express obligation to inform his employer about other employment). When considering this point, the EAT reviewed all of the contractual documentation. This nonetheless, only referred to an express obligation to disclose criminal convictions or cautions (and so not investigations which do not lead to conviction or caution) and impropriety committed by Mr Amadi or other employees. This latter obligation was limited to his employment with the Academies and so did not cover his employment with the College.

The EAT also considered the Academies contractual references to national standards in relation to safeguarding. However, the Academies failed to disclose any information or documentation during proceedings in relation to national standards. The EAT held that without such information or documents, and in the absence of any other express contractual obligations, it was not possible to find that Mr Amadi was subject to an express obligation to disclose allegations of misconduct.

The Academies then tried to establish an implied duty to disclose allegations of misconduct. The EAT considered a number of cases in relation to implied duties and relied on an earlier decision in Bell v Lever Brothers Limited [1932] AC 218 which held that employees are not under a general implied duty to disclose their own misconduct to their employer. In light of this, the EAT held that Mr Amadi had not breached his contract by failing to disclose the sexual misconduct allegations and the EAT upheld the decision that Mr Amadi had been unfairly dismissed.

So what does this mean for FE colleges?

The outcome of this case is likely to be surprising as most would automatically think that such serious allegations should obviously be disclosed. The case makes it clear that in the absence of any express contractual obligation, employees will not be under a duty to disclose allegations of misconduct against themselves.

The decision may have been different had the Academies produced evidence of the national standards they referred to. This case is a helpful and important reminder that clear, well drafted contracts and policies are a must in order to clearly identify express contractual obligations on employees.

In light of the above, FE colleges would be well advised to review their current contracts and policies to ensure they have clear and express terms regarding disclosure of misconduct. It is also important to examine the scope of such wording to consider conduct outside of the workplace.

Sarah Burke is a solicitor at Thomas Eggar, the law firm