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Previous misconduct - What do you do?

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In a recent case, before the Employment Appeal Tribunal, it was held that an employee is under no duty disclose their own previous misconduct to their employers.

The respondent, The Basildon Academies, employed the claimant, Mr Emmanuel Amadi, as a permanent member of staff working two days a week, in the capacity of a cover supervisor. A short while later the claimant also started to work part-time at Richmond upon Thames College. The claimant did not inform the respondent of this and therefore he was in breach of an express term of his contract of employment that he had signed with the respondent.  

Richmond upon Thames College suspended the claimant when a female pupil alleged that he had sexually assaulted her. The allegation was reported to the police. The claimant was arrested however no criminal action was taken against him. The police then contacted the respondent and advised them that the claimant had been suspended by Richmond upon Thames College due to an allegation of sexual assault made against him. Following this disclosure the respondent suspended the claimant.

Following his suspension the claimant was dismissed from his job for breaching the terms of his contract of employment and for deliberately failing to disclose that he had been suspended from Richmond upon Thames College due an allegation of sexual misconduct.  

The claimant issued a claim for unfair dismissal against the respondent. The Employment Tribunal held that the claimant had in fact been unfairly dismissed. The respondent appealed alleging that the claimant was under an implied duty, due to an express term in his contract of employment, to report all allegations of misconduct made against him, even when the allegation did not concern anything that had occurred at the school at which he worked.

The respondent argued that in the absence of an express term, in the claimant’s contract of employment, there was an implied term that placed an obligation on the employee to disclose to their employer any allegations of misconduct that occurred previously and during their course of employment.

The Employment Appeal Tribunal dismissed the appeal and held that an employee is not under an express duty to disclose allegations made against him, save for those allegations that he had reason to believe were true. The Employment Appeal Tribunal further held that in the absence of an express term in his contract of employment there is no implied term for an employee to disclose any allegations of misconduct. 

This decision protects all employees from having to disclose allegations of misconduct made against them, unless there is an express term in your contract of employment. If you have any issues or concerns regarding your employer discriminating against you as a result of your previous misconduct, which you have not disclosed, then please do not hesitate to contact our discrimination team on 0345 122 8665.

By Rakhsana Noreen, trainee solicitor in the dispute resolution team.

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