Is there an implied duty to disclose allegations of misconduct?

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You hear on the grapevine that one of your members of staff has started working in a second job at another employer.  Whilst working at the other employer they are accused of sexually assaulting a colleague, resulting in their suspension.  When you hear of this, you dismiss the employee for not reporting the allegations made against them and for working elsewhere without permission.

This is the scenario in the case of the Basildon Academies v Amadi.  In this case Mr Amadi was a cover supervisor at the Academies.  He breached his contract by working at a different college without the Academies’ permission.  Whilst working at a different college it was alleged that he sexually assaulted a pupil and was suspended.  This led to a police investigation and, in turn, the Academies found out about the matter and dismissed him (on the basis he had deliberately decided not to tell the Academies of both the allegation and his other employment).  The Academies decided that this was a breach of contract which they also regarded as gross misconduct.

The legal issue here is whether or not there is an implied duty on an employee to report allegations of misconduct against themselves.  The employment tribunal found that there was no such implied duty and Mr Amadi had therefore been unfairly dismissed.  The Academies appealed on the basis that the employment tribunal ought to have implied a contractual obligation on the employee to inform the Academies of the alleged misconduct.  The Employment Appeal Tribunal (EAT) held that there is no implied term that an employee must disclose to his employer (in the absence of an express contractual term) an allegation of misconduct made against them.

Given the EAT’s resistance to imply a contractual duty to report wrongdoing, it is necessary to ensure that your contracts clearly identify what contractual obligation an employee is under in respect of reporting second jobs and/or wrongdoing.  This is particularly important where you are operating with young people or venerable adults. Trustees who owe more extensive fiduciary duties, would be required to report their own wrongdoing, but for most employees a fiduciary relationship does not exist and the only way to deal with the issue is through an express provision in the employment contract.

Charities will also need to consider whether the nature of any misconduct is sufficient to require making a serious incident report to the Charity Commission.

For further information, help or advice please contact Tim Davies on 0191 211 7927 or [email protected].