Do employees have a duty to disclose allegations of misconduct to their Employer?

In Basildon Academies v Amadi, Mr Amadi worked at Basildon Academies as a Cover Supervisor. Whilst still employed by Basildon Academies, he took on an alternative contract with Richmond upon Thames College. Following allegations of sexual misconduct against a pupil at the College, Mr Amadi was suspended by them in order for an investigation to be carried out. The police became involved but no criminal charges were taken against Mr Amadi. Basildon Academies then became aware of the police investigation at the College.  Basildon suspended Mr Amadi and, after a disciplinary hearing, dismissed him for gross misconduct.

Mr Amadi then brought Employment Tribunal proceedings for unfair dismissal.  The Tribunal found that he had been unfairly dismissed. Basildon appealed the decision to the Employment Appeal Tribunal arguing that Mr Amadi had a duty to disclose allegations of wrongdoing to them, both under an express duty in his contract of employment and an implied duty owed to all employers.

At appeal, it was found that Mr Amadi’s owed no express duty under his contract to disclose his alleged wrongdoing and there was no implied duty in law that an employee need disclose an allegation of impropriety against him. Therefore, as there had been no express or implied obligation on Mr Amadi to disclose the allegation to his employer, his omission could not amount to misconduct justifying dismissal.

What does this mean for your business?

Without an express provision in an employee’s contract, an employer is unlikely to be entitled to dismiss an employee purely on the basis of failing to disclose an allegation of misconduct. Whilst the content of the misconduct itself may be enough for dismissal, employers should be careful about referencing a failure to notify them when coming to a disciplinary decision.  

For employers who operate in sectors where they need to monitor employees’ ongoing suitability for their roles, you should consider whether your express terms currently contained within the contracts are wide enough to require employees to report allegations of their own misconduct. This is particularly relevant for companies that operate within regulated markets.  However it would be beneficial for all companies to review their contracts to ensure they contain such a term. Not only will this assist in future disciplinary hearings, but may also assist in limiting any reputational damage that may be caused to the company as a result of an employee’s actions.

How can you find out more?

If you would like any further information on the issues raised above, please contact Heyma Holmes on 01242 248253 or email heyma.holmes@bpe.co.uk.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.