Employment Review: July 2015 – Duty to disclose own misconduct?
This is particularly the case in sectors such as education and healthcare, or with senior employees and directors. If there is no express term, is there nevertheless an implied duty on an employee to disclose their own wrongdoing?
Mr Amadi was a citizen of Nigeria and had been working in the United Kingdom on a work visa. Mr Amadi began work in 2008 at The Basildon Academies and later accepted a part-time contract in March 2011, working Thursday and Friday. A letter dated 26 October 2011 formed his employment contract by reference to other documents, including a Code of Conduct.
In September 2012, Mr Amadi entered into a zero hours contract to work for Richmond upon Thames College Monday-Wednesday. He did not inform Basildon that he was taking this role, despite his contract requiring him to inform Basildon of any other employment. In December 2012, Mr Amadi was suspended by Richmond upon Thames College due to accusations by a female pupil of sexual assault. He did not inform Basildon about the allegations.
As part of the investigation, the police contacted Basildon in March 2013 to enquire about Mr Amadi’s employment history with them. This put Basildon on notice about both his employment with Richmond and the allegations arising out of that employment.
Basildon suspended Mr Amadi and following a disciplinary hearing in July 2013, he was dismissed with immediate effect for two breaches of contract which Basildon claimed amounted to acts of gross misconduct. Firstly, for failing to make Basildon aware that he had taken up employment at Richmond and secondly, that he had failed to disclose to them the accusations of sexual assault.
With regard to the accusation of sexual assault, Basildon’s Code of Conduct was referred to in Mr Amadi’s contract but the Code did not explicitly state that employees had to disclose their own misconduct, referring to a duty to report the misconduct of others or their own criminal convictions or serious allegations made against them. It was not clear whether the reference to allegations was restricted to those relevant to Mr Amadi’s employment with Basildon. The Tribunal concluded that this was restricted to anything relevant to his employment with Basildon. The Tribunal therefore found that there was no breach of contract and this could not amount to gross misconduct.
The Tribunal held that Mr Amadi had been in breach of an express term that he had to inform Basildon about any other employment; however, this was insufficient to justify dismissal. The Tribunal therefore determined that Mr Amadi’s dismissal was unfair but reduced his compensation significantly to reflect that he had contributed to his dismissal by failing to notify Basildon about his Richmond employment.
Basildon appealed to the Employment Appeal Tribunal, relying upon their duty to safeguard children under National Standards.
The EAT dismissed the appeal and upheld the finding of unfair dismissal. It was held that no information about National Standards or Basildon’s own standards on safeguarding children had been submitted to the Tribunal, and therefore it was not possible to establish an express obligation to disclose allegations of misconduct.
The EAT also found that, as a matter of law, there is no implied term requiring employees to disclose their own misconduct to their employer.
If Mr Amadi’s contract contained an express term to report his own misconduct or any allegations against him, it may well have resulted in a different outcome. For senior employees and directors, it is fairly common to include an obligation in the contract of employment requiring the employee/director to report their own misconduct. Otherwise, employers could refer to their Employee Handbook or a Code of Conduct to spell out any such requirement. Employers should be careful to ensure that the requirement for disclosure includes anything which may affect the continued employability of the employee.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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