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Case update (2): Contracts of employment – a need to confess?

settlement agreement - hand signing with penSummary: Is there is an implied term in a contract of employment that requires employees to disclose allegations of misconduct made against them?

No, says the EAT in Basildon Academies v Amadi and Another, available here.

Facts: Mr Amadi worked as a tutor at The Basildon Academies (the Academies) for two days a week. Mr Amadi also then accepted a zero hours contract to work three days a week at Richmond upon Thames College (the College). However, 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 allegations by a student of sexual assault. He did not inform the Academies of the allegations against him. However, in March 2013 the Academies were informed by the police of the nature of the allegations. The Academies suspended Mr Amadi.

At a disciplinary hearing the Academies dismissed Mr Amadi for not reporting the allegations of misconduct and for not disclosing his work at the college. Mr Amadi brought a Tribunal claim for unfair dismissal.

The Tribunal found that Mr Amadi had been unfairly dismissed. It considered the terms of his contract of employment and found that his failure to inform the Academies of his employment at the College was a breach of an express term of his contract. However, with regard to the allegations of misconduct, it found there was no term in his contract which required him to disclose these allegations to the Academies.

The EAT dismissed the Academies’ appeal. The EAT considered the terms of Mr Amadi’s contract and found that there was no express term in his contract which required him to disclose the allegations. It also found that there was no implied term that obliged an employee to disclose to their employer an allegation of impropriety against them.

Implications: A useful reminder that employees are not under an implied duty to disclose their own misconduct or allegations against them. Therefore an employer should include such a duty as a term of the employment contract. If an employer also wants an employee to tell it about misconduct or allegations outside of employment, then the clause will need to be drafted widely enough to cover these circumstances.

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