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No Implied Term Duty to Disclose Allegations of Misconduct

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Is there an implied term in an employment contract that an employee should disclose his own misconduct?

No, held the EAT in The Basildon Academies v Amadi, dismissing the Academies' appeal.

Mr Amadi was a Cover Supervisor at the Academies. He breached his contract by not getting his employer's permission to work at Richmond upon Thames College, where he was accused of sexually assaulting a pupil and suspended. After police involvement, no criminal action was taken against him. The Academies heard about the police investigation and ultimately dismissed the Claimant for not reporting to it the allegation made at Richmond, and for working elsewhere without permission.

The unfair dismissal claim succeeded. The Academies appealed, arguing that there was an implied duty on an employee to report allegations of misconduct, as well as an express duty in his contract to do the same.

The EAT analysed the Claimant's contract and the Academies' policies, finding no express duty on the Claimant to report allegations against him, except for ones he knew or had reason to believe to be true. He could not therefore have been fairly dismissed for conduct on account of breaching his contract or the Academies' policies.

The EAT held that there was no implied term that 'an employee must disclose to his employer, in the absence of an express contractual term requiring him to do so, an allegation however ill-founded of impropriety against him'.

Practitioners should note that the EAT and employment tribunal did not have in the evidence before them the National Standards that applied to the Claimant's employment. The EAT noted that its findings on the express duty point were not likely to be of wider application. An appeal on remedy failed, the EAT noting that arbitrary decisions may be justified by the facts on quantum.