A duty to confess?
A recent case, Basildon Academies v Amadi (2015), serves as a useful reminder that most employees do not have a duty to either (i) report the misconduct of their colleagues or (ii) report their own misconduct to their employer. There is no general duty to “confess” unless an employee is also a fiduciary (usually a director). In very limited cases, employees in a position of particular importance, responsibility or trust have also been found to owe such a duty on the particular facts of such cases.
In the Basildon case the facts were as follows:
Basildon Academies is a comprehensive school. The claimant was an employee who worked 2 days per week, namely Thursday and Friday.
In September 2012, the claimant accepted employment with another school, Richmond upon Thames College, on a zero hours contract. He neglected to inform Basildon Academies of this additional work, which was in breach of an express term in his contract.
In December 2012, in connection with his employment at Richmond College, the claimant was accused of a sexual assault by a student and was suspended. The police investigated the allegation but no prosecution ensued.
In March 2013, the police informed Basildon Academies of the allegations. Basildon suspended the claimant and pursued a disciplinary process which resulted in his dismissal. The reasons for his dismissal were that he had not informed his employers of the additional work and, perhaps more importantly in a school environment, that he had not informed them of the allegations of sexual misconduct. Both of those omissions were considered to be gross misconduct.
The claimant issued a claim for unfair dismissal and was successful. The tribunal decided that Basildon was not entitled to treat the claimant’s failure to inform it about the allegation of sexual misconduct, as an act of gross misconduct as there was not clear policy or contractual term requiring him to make such a disclosure.
Basildon appealed the finding of unfair dismissal. It sought to argue that (i) a contractual term did exist which required the claimant to disclose the allegation and (ii) in the alternative, such a term should be implied.
The EAT found that there was no general position in law 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.
An employer will understandably have concerns if it learns of employee misconduct which it feels might have an adverse impact on its business. However, such concerns do not necessarily create legitimate grounds for dismissal. Employers must consider whether such conduct is expressly prohibited by their contractual and policy documents, whether the employee was made aware of such prohibition, the context of the misconduct, whether it bears any relation to the employment and whether it has the capability to damage the employer. Matters occurring outside of employment can rarely be used as legitimate grounds for dismissal, unless there is a provable adverse impact on the employer.
An employee’s failure to disclose an act of or allegation of misconduct breaches no duty and cannot in itself be used as a reason for dismissal unless the employer has by contract, secured the right to use it as such.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at email@example.com.