In The Basildon Academies v Amadi, Mr Amadi (‘A’) worked two days a week for Basildon Academies (BAc). ‘A’ accepted a positon on a zero hours contract at Richmond upon Thames College (RTC) for the remaining three days in the working week, but did not inform BAc, which was a breach of an express term of his contract. A female pupil at RTC alleged ‘A’ had sexually assaulted her. ‘A’ was arrested, but not prosecuted. The police informed BAc about the events at RTC. Following a disciplinary hearing, ‘A’ was dismissed for gross misconduct, i.e. deliberately not informing BAc about his employment at RTC and about the allegation of sexual misconduct.  A tribunal found the dismissal unfair, as it was outside the range of reasonable responses. But ‘A’s compensation was reduced by 30% for contributing to his dismissal by not informing BAc about his employment at RTC. BAc appealed.  

The EAT held that the contractual terms were the central issue. With regard to the express terms, it was clear that ‘A’ had a duty to inform BAc about his employment with RTC. It was also clear that ‘A’ was obliged to disclose any conviction or caution for an offence other than a minor motoring offence and to report any impropriety committed either by himself or by another member of staff. But with regard to the latter, ‘A’ was only under an obligation to report an allegation made against him which he knew or had reason to believe to be true. As neither circumstance applied then no express contractual obligation existed to report the allegation made by the pupil at RTC. Nor was there an implied contractual obligation, since the established legal position is that, absent an express term, an employee is not obliged to disclose any allegations of his or her own misconduct, however ill-founded, to the employer. Therefore, the tribunal had been entitled to find in all the circumstances of the case that the decision to dismiss was outside the band of reasonable responses.

The EAT’s ruling confirms the importance of having clear express terms covering any obligation that an employer wants to place on an employee. In this case, it may well have been that national standards imposed an obligation on teaching staff to disclose allegations of misconduct relating to children or young people, but BAc had not presented this evidence. The ruling also confirms the importance of employers taking all the circumstances of a case into account before deciding to dismiss. A legal analysis of the contract would have identified that there was no express or implied contractual obligation on the employee to disclose the allegation.

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