Are employees under an implied duty to disclose a mere allegation of impropriety against them?

Evidently not, according to Mitting J in the Employment Appeal Tribunal case of Basildon Academies v Amadi. If the employer has not imposed any express contractual term or clear policy requiring an employee to disclose such information, there is no scope for the employer to treat such an omission as gross misconduct.


This case, interestingly, was in the education sector and involved an allegation of sexual assault against the claimant when working for Employer B on days when not under contract with Employer A. Upon hearing of the allegation (which in fact led to no prosecution), Employer B suspended him. The claimant kept it quiet and did not tell Employer A, who went one step further once they found out, and used the non-disclosure as grounds for a gross misconduct dismissal.

The judge found the dismissal unfair. There was no basis to impose an implied duty to disclose an allegation of impropriety, save for one that the employee knew or had reason to believe was true. As such there was no misconduct at all, let alone any that still left dismissal outside the range of reasonable responses.


What is the moral for employers? Keep your terms under review and make sure they are wide enough and clear enough to catch any act or omission that you wish to treat as misconduct. It’s all very well to list examples of gross misconduct and to proclaim that they are non-exhaustive, but you’ll have the burden of proving that anything else is caught.