In Basildon Academies v Amadi and anor, the EAT has held that there was no express or implied contractual obligation on a tutor to inform the school at which he worked part-time that an allegation of sexual assault had been made against him by a pupil at another school where he also worked. There was no express term or clear policy statement requiring such disclosure and it was not appropriate to imply a duty to disclose into the contract of employment.
A worked on Thursdays and Fridays for an Academy as a tutor. In September 2012, he accepted a zero-hours contract to work between Monday and Wednesday at a separate college. He did not inform the Academy about this, which was a breach of an express term of his contract with the Academy. In December 2012, A was suspended by the college when a female pupil alleged that he had sexually assaulted her. A did not inform the Academy of this allegation either. The police eventually informed the Academy of it in March 2013, whereupon it suspended A. Following a disciplinary hearing, the Academy concluded that A had decided deliberately not to inform it about his employment at the college and the allegation of sexual misconduct. It took the view that both were acts of gross misconduct and so dismissed him.
A succeeded in a claim of unfair dismissal. The tribunal found that the Academy was not entitled to treat A’s failure to inform it about the allegation as gross misconduct in the absence of any clear policy or contractual term requiring him to disclose such information. The tribunal did, however, reduce A’s compensation by 30% to reflect his contributory conduct in failing to inform the Academy about his second job. The Academy appealed to the EAT, arguing, among other things, that the tribunal ought to have implied a contractual obligation on A to inform the Academy about his own alleged misconduct.
The EAT dismissed the appeal. The tribunal was clearly entitled to find that A’s failure to inform the Academy about the allegation was not in breach of any express contractual term. As for the suggested implied term, the EAT noted that, following the Court of Appeal’s decision in Item Software v Fassihi (Brief 773), there may be circumstances in which employee can be under a duty to disclose his or her own misconduct. However, it is clearly not the law that an employee must disclose to his or her employer any allegation of impropriety, however ill-founded. That being so, it was difficult to see how A’s omission could amount to misconduct at all, let alone misconduct sufficient to justify dismissal. The tribunal had gone on to consider whether the dismissal was fair even in the absence of any contractual duty to disclose and had concluded that, given that there was no clear policy requiring disclosure, the dismissal was outside the band of reasonable responses. That was a permissible finding.
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