The Basildon Academies v Amadi

An employee is not subject to an implied contractual duty to report every allegation of impropriety made against them. In the absence of an express term, the duty does not extend to an allegation which the employee neither believes nor has reasonable grounds to believe is true.

The scope of any reporting obligation depends on the contract and any incorporated standards or policies. A dismissal for failing to report an allegation is outside the range of reasonable responses where no applicable rule required disclosure. In assessing future loss, an Employment Tribunal may make a necessarily broad estimate where the available evidence does not permit a reliable calculation, provided the assessment reveals no error of law.

The claimant, a school cover supervisor, was dismissed for failing to disclose both outside employment and an allegation of sexual misconduct made by a pupil at another college. The Employment Tribunal held the dismissal unfair, while reducing compensation by 30% for his undisclosed outside employment and making a further Polkey reduction.

The employer appealed the finding on liability and the compensatory award. It contended that the claimant was contractually obliged, expressly or by implication, to report the allegation, and that the award for future loss was arbitrary. The central issues were whether the contract imposed such a reporting duty and whether the Tribunal had erred in law when assessing future loss.

1. Both appeals were dismissed. Construction of the written employment contract was a question of law. The contractual documents imposed duties to disclose other employment, convictions and cautions, and to report impropriety by staff. They did not impose an express duty to report an unproven allegation made against the claimant.

2. The whistleblowing appendix did not create that duty. Its advice concerning a significant complaint against an employee could not be read as a contractual obligation to report an allegation unless the employee knew or had reason to believe it was true. Although national safeguarding standards might have imposed a wider duty, none applicable at the material time had been put before the Tribunal. The conclusion was therefore confined to the contractual and evidential circumstances of this case.

3. There is no absolute rule that an employee can never owe an implied duty to disclose their own misconduct. However, no implied term required an employee to disclose an allegation, however ill-founded, absent an express contractual requirement. The claimant therefore committed no breach by failing to report the allegation. The Tribunal was entitled to find that dismissal for that omission, without evidence of an applicable reporting rule or reasonable investigation of the policies, fell outside the band of reasonable responses.

4. The four-year assessment of future loss was necessarily arbitrary, but not unlawfully so. The Tribunal had found that the claimant had mitigated his loss, faced severe difficulty finding work because of his immigration position, and was unlikely to obtain a new sponsor or visa. A remittal would still have required speculation about future employment and earnings, including in Nigeria. The award disclosed no error of law.

• Employment Appeal Tribunal: dismissed the employer's appeals against the Employment Tribunal's liability decision and compensatory award.
• Employment Tribunal: held that the claimant had been unfairly dismissed. Its decision was sent to the parties on 13 March 2014. It reduced compensation for contributory fault and for the chance of dismissal for capability reasons.