All employees have an implied duty of fidelity applies in their employment contract. However it is well established that employees are not under a general duty to disclose their own misconduct to their employer. The exception would be where the employee is at a senior level such as the director or senior manager where he would be obliged to report his own misconduct to his employer.
In the recent case of The Basildon Academies v Amadi UKEAT/0343/14, the EAT considered whether an employee was under an implied duty to disclose allegations of his own misconduct to his employer in the absence of any express contractual obligation. The EAT upheld the Tribunal’s decision of Unfair Dismissal as Mr Amadi had not breached his contract by failing to disclose the allegation of sexual misconduct at another employer and the decision to dismiss in these circumstances was outside the band of reasonable responses.
Mr Amadi worked as a tutor at The Basildon Academies part time and his terms and conditions set out his obligations in relation to safeguarding children, young and vulnerable adults with reference to national standards and the Academies’ policy. He subsequently started work at a college part-time but in breach of an express term in his contract requiring him to notify his employer if he took up employment elsewhere, he did not notify the Academies.
Some months later he 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 but not prosecuted.
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 then suspended him and he was subsequently dismissed with immediate effect for two acts of gross misconduct; failing to inform the Academies of his employment with the College and the allegation of sexual misconduct.
An employment tribunal held that Mr Amadi had been unfairly dismissed as the decision to dismiss was outside the range of reasonable responses but that he had contributed by 30% to his dismissal by not informing the Academies of his employment with the College in breach of contract. The Academies appealed to the EAT against the finding of unfair dismissal. The EAT held that Mr Amadi had not breached his contract by failing to disclose the allegation of sexual misconduct at the College and the EAT upheld the decision.
It is therefore worth employers considering whether they wish to include a specific provision in the contract concerning the employees own misconduct as relying on the implied term may not be sufficient. This case may however have been different on the facts if the Academies had produced and relied on the national standards or its own safeguarding policy before the Tribunal. However., it failed to adduce these in evidence.