Disclosing allegations of misconduct

Is an employee under an implied duty to disclose allegations of his own misconduct in the absence of an express term? James Rhodes analyses an Employment Appeal Tribunal ruling.

The claimant in The Basildon Academies v Amadi worked as a tutor at The Basildon Academies (the Academies) for two days a week as a Cover Supervisor. The terms and conditions of his employment were set out in a letter dated 26 October 2011, which referred to various other documents and stated that together, these documents formed his employment contract. The documents included terms and conditions of service (the T&C document) and the Academies' Code of Conduct (the Code). Clause 8 of the T&C document set out the employees' obligations in relation to safeguarding children, young and vulnerable adults with reference to national standards and the Academies' policy.

In September 2012, Mr Amadi accepted a zero hours contract to work three days a week at Richmond upon Thames College (the College). He did not inform the Academies of his employment with the College in breach of an express term in his contract requiring him to notify his employer if he took up employment elsewhere. In December 2012, Mr Amadi was suspended by the College following accusations by a female pupil that he had sexually assaulted her. He was arrested and bailed by the police. It was not known whether he was charged but no prosecution took place. In March 2013, the police contacted the Academies to make enquiries about his employment there and informed them that Mr Amadi had been suspended from his employment with the College. The Academies suspended Mr Amadi and following a disciplinary hearing in July 2013, he was dismissed with immediate effect for two acts of gross misconduct; failing to inform the Academies of both his employment with the College and the allegation of sexual misconduct.

An employment tribunal held that Mr Amadi had been unfairly dismissed, but that he had made a 30% contribution to his dismissal by not informing the Academies of his employment with the College in breach of contract. The Academies appealed to the EAT who upheld the tribunal's decision. The EAT found that while Mr Amadi was required to comply with the Code, and he was expressly obliged to disclose any criminal conviction or caution as well as any impropriety in respect of himself or another member of staff, in relation to employment with the Academies. While the national standards referred to in clause 8 of the T&C document may have imposed an obligation on teaching staff to disclose allegations of impropriety concerning children or young people in their care, whether at their place of employment or elsewhere, they had not been put before the tribunal. Without this evidence, it was not possible to establish an express obligation to disclose allegations of misconduct. The EAT went on to hold that, in the absence of an express term, the employee was not under an implied duty to disclose the allegations of misconduct. 

What this means for employers

The EAT's reluctance to imply the term argued for in this case continues the trend that the courts will not readily imply terms. Employers who wish their employees to owe a duty to disclose their own misconduct, or allegations of misconduct made against them, whether during or outside of their own employment, need a well drafted express clause. If relying on additional documents, these must be clearly and properly incorporated into the contract of employment. 

The EAT might well have found an express term to report wrongdoing had the national standards been put before the tribunal, so this decision is fact-specific and not necessarily of general application to the education sector.

James Rhodes is a partner at DAC Beachcroft. He can be contacted on 0113 251 4795 or This email address is being protected from spambots. You need JavaScript enabled to view it..