Disclosure of conduct outside the employment relationship

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The Claimant worked as a tutor at the Respondent for two days a week. Almost a year later he accepted a zero hours contract to work three days a week another College. He did not inform the Respondent of his employment with the College in breach of an express term in his contract requiring him to notify his employer if he took up employment elsewhere.

Three months later he was suspended by the College following accusations by a female pupil that he had sexually assaulted her. He was arrested and bailed by the police but not prosecuted. Three months later, the police contacted the Respondent to make enquiries about his employment there and informed them that the Claimant had been suspended from his employment with the College.

The Respondent suspended the Claimant and then subsequently summarily dismissed for two acts of gross misconduct; failing to inform the Respondent of both his employment with the College and the allegation of sexual misconduct.

An employment tribunal held that the Claimant had been unfairly dismissed, but that he had made a 30% contribution to his dismissal by not informing the Respondent of his employment with the College in breach of contract. The Respondent appealed to the EAT against the finding of unfair dismissal.

The EAT upheld the tribunal’s decision that an employee was not under an express or implied duty to disclose to his employer allegations of sexual misconduct made against him while working elsewhere. The employer was unable to establish that the employee was under an express obligation to disclose his alleged wrongdoing. The EAT held that, in the absence of an express term, the employee was not under an implied duty to disclose the allegations of misconduct.

Whilst posts involving children are now subject to DAB checks it is worth considering as an employer whether activities outside of the work place may impact on the current role and if so making it an express provision of the contract that certain misconduct or allegations are disclosed. This may be particularly relevant when employing part-time or atypical workers who may have more than one job.

24th July 2015