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Keeping shtum about alleged misconduct – The Basildon Academies v Amadi

There is no general duty on employees to tell their employer about misconduct or other past wrongdoings that they may (or may not) have been involved in. Some senior staff – directors, for example – owe fiduciary duties, and this puts them in a separate category of employees who are obliged to make these sorts of disclosures. For other members of staff, the wording of their contract tends to be the starting point when considering if there is such a duty. But what if the contact is silent or doesn’t go far enough? Can terms be implied?

Mr Amadi was a part-time tutor at the Academies. He worked at another College at the same time, where allegations of sexual assault were made against him. He was arrested, but not prosecuted, and went on to be dismissed by the Academies for not revealing (1) that he was also working at the other College; and (2) the sexual misconduct allegations. 

He was held to have been unfairly dismissed, but had contributed to his dismissal by not coming clean about having the job at the other College. Had he been under a duty to reveal the misconduct allegations? No, said the Employment Appeal Tribunal (EAT). There was no express term in his contract requiring Mr Amadi to report an allegation which he didn’t believe to be true and had no reasonable ground to believe was true. So it had come down to whether or not a term could be implied. The EAT made clear that there is no implied duty on an employee to disclose an allegation, however ill-founded, of impropriety against him. 

The lesson for employers? Think about the express terms in your contracts. If you are keen to encourage staff to tell you about their misconduct, you should provide for this in the contract. Make sure that terms are wide enough to cover everything you need them to, perhaps including actual and alleged misconduct relating to an employee’s employment with you and to any other job they carry out. Setting things out in black and white offers good protection. 

Please contact a member of the Employment Team if you would like to find out more or to discuss your circumstances further.  You can also contact Mark Bestley on 01625 507571 or 07825 081 856 or email on [email protected]

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