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Is there an implied duty for the Employee to disclose an act of misconduct?

No, advises Employment Lawyer, Paula Stuart, following the recent Employment Appeal Tribunal (EAT) decision in The Basildon Academies v Amadi. The EAT upheld the Employment Tribunal’s decision that there is no implied duty for an employee to disclose or report allegations of misconduct to their employer.

The facts of this case are that Mr Amadi was a part-time Cover Supervisor at The Basildon Academies, working two days a week.  He had accepted a zero hours contract to work between Monday and Wednesday at Richmond upon Thames College, but did not inform The Basildon Academies, and this was a breach of an express term of his contract of his employment.  During his employment at Thames College, a pupil alleged that he had sexually assaulted her and the allegation was investigated by the Police.  The charges were eventually dropped and no prosecution was made.  Several months later The Basildon Academies discovered that Mr Amadi was working at Thames College and had been subject to allegations of misconduct.  They dismissed him on the grounds of gross misconduct for failing to inform them about his other employment and also about the allegations of sexual misconduct. The Employment Tribunal held that he had been unfairly dismissed but reduced compensation by 30% on the basis that he contributed to his dismissal for failing to disclose his other employment which was an express term of the contract.

The EAT upheld the Employment Tribunal’s decision that there is no implied duty for an employee to disclose his own misconduct to his employer in the absence of an express contractual term requiring him to do so.

Paula Stuart says that: “employers may wish to review their contracts to ensure that all employees have a duty to disclose acts of misconduct, especially where the misconduct may impact on an employee’s suitability for the role”.

If you require any advice in respect of this, or any other employment matter, please contact Paula Stuart at pstuart@geoffreyleaver.com or on 01908 689345.