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Can you keep a secret?

BY Heather Kemmett
Employment Law & HR
BG Purple

Presumably most of us would like to keep our misdemeanours from our employer. 

The Employment Appeals Tribunal recently considered whether we can do just that, or whether there is an implied duty to disclose allegations of misconduct to our employer, in the absence of an express provision requiring disclosure. 

Mr Amadi worked with The Basildon Academies as a tutor as well later having another employer, Richmond upon Thames College. Mr Amadi was accused of sexually assaulting a female pupil at Richmond College and was arrested and bailed by the police. The College suspended him, however he did not advise Basildon Academies of the allegations.  

When the police contacted the Academies to inform them about the allegations and to advise that Mr Amadi had been suspended from the College, the Academies suspended him and following a disciplinary hearing dismissed him for gross misconduct. 

Under the Academies’ Code of Conduct, he was under an obligation to expressly disclose any criminal conviction or caution. He was also obliged to disclose any impropriety committed by himself or others, however this applied only where the alleged conduct took place in the course of his employment. These allegations related solely to his employment with Richmond College. 

Whilst it is recognised that an employee has an implied duty of fidelity towards their employer, the EAT decided that this implied duty does not extend to requiring an employee to disclose his own misconduct to his employer in the absence of an express term to that effect. Mr Amadi had not breached his contract by failing to disclose allegations of sexual misconduct and so the dismissal fell out with the band of reasonable responses open to the employer. 

This case confirms that an employee will not be obliged to “whistleblow” on himself, and so an employer who wishes an employee to disclose such misconduct must have a carefully drafted clause requiring this.

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