No Implied Duty to Disclose Allegations of Misconduct

An employee’s dismissal for failing to disclose allegations of misconduct was unfair.

In The Basildon Academies v Amadi, Mr Amadi worked as a tutor at The Basildon Academies two days a week. He subsequently took up a three day a week role at Richmond upon Thames College. 

Mr Amadi was suspended by the College following allegations by a pupil that he sexually assaulted her. He was arrested and bailed by the police. As part of their enquiries the police contacted the Academies and informed them that Mr Armadi had been suspended from his employment with the College. 

Following a disciplinary hearing, the Academies dismissed Mr Armadi for gross misconduct in failing to inform them of the allegation of sexual misconduct. 

He claimed unfair dismissal. The employment tribunal agreed that his dismissal was unfair. The employer appealed unsuccessfully to the Employment Appeal Tribunal. There was no express contractual obligation requiring Mr Amadi to disclose allegations of misconduct against him. There was no implied obligation either. Although all employees are under an implied duty of fidelity, this does not extend to requiring them to disclose their own misconduct to their employer. Mr Amadi had not therefore breached his contract and dismissal was outside the band of reasonable responses and unfair.  

Employers should include express provisions in the employment contract which require employees to disclose their own misconduct. These need to be drafted carefully and where necessary extend to misconduct (and allegations of misconduct) outside of the employment. 

Although directors and certain senior employees will have an implied duty to disclose their own wrongdoing as part of their implied fiduciary duties, it is not clear how senior an employee must be to attract this duty, or the type of misconduct that is covered. It is therefore sensible to include an express provision even for senior employees.