Care home briefing 147 – Is an employee obliged to tell their employer of an allegation of sexual assault?
In Basildon Academies v Amadi, Mr Amadi was a part time tutor in Basildon Academy who also worked part time in another college for a different employer (Richmond College).
An allegation of sexual assault was made against Mr Amadi by a pupil of Richmond College. Mr Amadi did not tell Basildon Academy about the allegation. There was nothing in his contract of employment or any Basildon policy that required him to do so. Basildon Academy only found out about the allegation when the police informed them of it some three months later.
Basildon Academy held a disciplinary hearing, at which the Academy decided, amongst other things, that Mr Amadi had deliberately withheld the sexual assault allegation from them. They decided this was an act of gross misconduct and dismissed Mr Amadi.
Mr Amadi sued Basildon Academy and won in the Employment Tribunal who found that the Academy had unfairly dismissed him. The Academy appealed to the Employment Appeal Tribunal. Basildon Academy sought to argue that although there was no express requirement on Mr Amadi to inform them of the sexual assault allegation, there was an implied requirement for him to do so. The Employment Appeal Tribunal disagreed. The EAT therefore agreed that Mr Amadi’s dismissal was unfair.
The case serves as a very important reminder for employers about the importance of ensuring that express obligations (like reporting an allegation committed outside of the employment) are included in the contract of employment or in a separate policy. All employers should therefore review their contracts of employments and/or polices to ensure an express provision is included. For example, it should expressly state that any allegation made against an employee, whether in work or outside of work, must be disclosed to the employer promptly and failure to do so could result in disciplinary action.
This issue is particularly important in the care and health sectors where second jobs are prevalent.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.