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Case law round-up – June 2015

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23/06/2015

Employee was not under implied duty to disclose allegations of misconduct in the absence of an express term requiring him to do so – The Basildon Academies v Amadi [UKEAT/0343/14]
This Employment Appeal Tribunal (EAT) decision highlights that employees are not under an implied contractual duty to disclose to their employer allegations of misconduct that may have been made against them outside of work even where, as in this case, the allegations were of sexual misconduct. It is essential to have an express term incorporated into the contract requiring such disclosure. In the absence of an express term, disciplinary action or dismissal may well be found to be procedurally unfair.

Facts of the case
Mr Amadi was employed as a tutor at the Basildon Academies for two day a week. During this employment he accepted a zero hours contract as a tutor to work up to three days a week for Richmond upon Thames College (the ‘College’). His contract with the Academies did not contain any express term requiring him to disclose allegations of misconduct made against him outside of work. It did, however, make reference to national standards on safeguarding. Shortly after accepting work with the College, it suspended him following accusations by a female pupil that he had sexually assaulted her. He was arrested and bailed but no prosecution took place.

A few months later, the police contacted the Academies to make enquiries about Mr Amadi. As a result of this the Academies learned that he had been suspended from his role at the College. It suspended him and, following a disciplinary hearing, he was dismissed for gross misconduct primarily because he had failed to disclose the allegations of sexual misconduct.

The Employment Tribunal held the he had been unfairly dismissed because there was no express term in Mr Amadi’s employment contract or handbook obliging him to disclose allegations of misconduct made outside of his employment. Critically, the Academies had been unable to produce any information about the national standards or its own policies on safeguarding children and young adults. Without such evidence, the Tribunal was not able to establish any express obligation to disclose allegations of misconduct.

The EAT upheld the Employment Tribunal’s decision and also considered the question of whether there was any implied obligation for him to disclose the misconduct in the absence of an express contractual requirement. It analysed the existing case law on this point and came to the view that there was no such implied obligation. Accordingly, the EAT agreed with the Tribunal’s findings that the decision to dismiss was outside the band of reasonable responses.

Walker Morris comment
Had the Academies been able to produce evidence that Mr Amadi had been subject to an express requirement to disclose his misconduct the outcome may well have been different. The key point to take from this case is that there is no implied obligation on an employee to disclose misconduct outside work to their employer even where the misconduct is serious or of a sexual nature. For this reason, it is essential to ensure that contracts of employment and policies are clear on this point and are also drafted widely enough to cover misconduct outside of as well as within the employment relationship. This is particularly important when employing part time, zero hours or atypical workers who may be working for other employers.

Is an employer obliged to put a disciplinary procedure on hold whilst the employee’s grievance is dealt with? Jinadu v Docklands Buses [UKEAT/0434/14]
A question often asked by employers is whether they need to put disciplinary proceedings on hold in order to deal with an employee’s grievance raised during the disciplinary process. This Employment Appeal Tribunal (EAT) decision provides some guidance on the point.

Facts of the case
Ms Jinadu was a bus driver. Her employer received complaints from the public about the standard of her driving and, on investigation and reviewing CCTV footage, it was clear that her driving was well below the standards required and, in some cases, dangerous.

The employer commenced disciplinary proceedings and, during these, Ms Jinadu made certain allegations of bullying about some of her managers and she requested that this be dealt with as a grievance. In the meantime, the employer continued with the disciplinary proceedings and ultimately she was dismissed.

The Employment Tribunal found her dismissal had been fair. On appeal to the EAT, Ms Jinadu argued that the employer should have put the disciplinary proceedings on hold in order to deal with her grievance. The EAT firmly rejected this point noting that she had no grievance against the manager who actually conducted the disciplinary hearing. The decision to dismiss was within the band of reasonable responses and had not been made unfair, on the facts of this case, by the failure to postpone the proceedings to deal with her grievance.

Walker Morris comment
This decision does not go so far as to set a general rule that employers do not need to put disciplinary proceedings on hold pending a grievance. A judgment must always be made about what is the fair thing to do in each individual case. For example, if Ms Jinadu’s grievance had been that the managers (as part of the alleged bullying behaviour) had somehow ‘set her up’ or fabricated evidence against her then it may well have been reasonable to investigate this prior to making a final decision. In this case, however, the evidence of misconduct was clear cut and much of it was not in dispute. The decision to dismiss was based on this evidence and was therefore objective. The key message is that employers can take a firm line where an employee tries to throw up a ‘smokescreen’ to delay or derail disciplinary proceedings but should always be careful to make that decision based on the particular circumstances of the case.

Employer’s sponsorship licence revoked after record keeping failures and failure to comply with the resident labour market test – R v Secretary of State for the Home Department [2015] EWHC 1329
Sponsorship licences are essential for many businesses ranging from those who regularly employ workers who do not have the right to work in the UK to those who need senior staff from non-UK group companies to work in the UK. Employers will be exposed to significant disruption to their operations if they lose their sponsorship licence.

Your sponsorship licence may be at risk if you do not keep up with the immigration paperwork and requirements. The recent case outlined below serves as a cautionary tale and highlights the need to have tight controls in place.

Walker Morris’ specialist business immigration unit can help you to obtain and manage your sponsor licence and avoid the risks of getting it wrong as well as advise you on all of your immigration requirements.

What went wrong?
The employer ran three care homes and employed 39 “tier 2” migrant workers. Government compliance officers made a licence renewal visit to the employer’s registered address and found that it had moved premises. Its certificates of sponsorship showed the ‘old’ address but the old address was also incorrect. The Home Office also had concerns that the employer had failed to comply with the resident labour market test and other record keeping and recruitment requirements. Consequently, the employer’s licence was suspended and the letter of suspension gave the employer 20 working days to make representations and to submit evidence on the points raised. This letter included a clear warning that non-compliance would lead to revocation of the licence.

The employer wrote to make representations within the time period but, crucially, it did not provide any evidence on the points in question as it had been asked to. It subsequently received a letter revoking its sponsorship licence and applied for a review of the decision.

Court’s decision
The court said that the revocation was justified and in line with the Guidance for Sponsors. The key points in the decision were that:

1. The employer had failed to provide the missing evidence and documentation.
2. The employer had also failed to use correct procedures when seeking to correct its registered address.
3. During the period when its address was incorrect, the employer had continued to issue certificates of sponsorship falsely claiming that the address was correct.
4. The sponsor management unit had been entitled to regard that conduct as a matter for ‘serious disquiet’.
5. Revocation would normally be the outcome except in ‘exceptional circumstances. The court found that there were no exceptional circumstances in this case.

Walker Morris Comment
This is the first case to address the “tier 2” points-based system.

This case illustrates how easy it can be to fall foul of immigration rules by default. In a busy HR department faced with a number of conflicting priorities, failing to update an address or comply with record keeping requirements could sink to the bottom of an in-tray or fall through the net when someone goes on holiday or leaves the business. All employers must have a senior person tasked with ensuring that business immigration and sponsorship licence requirements are met with appropriate fail-safe procedures in place.
Sponsorship licences can also cause problems in business purchases, outsourcing or other situations involving TUPE. An employer may need to take steps to apply for a sponsorship licence or notify the Home Office if it acquires new employees working under a certificate of sponsorship who transfer along with the business purchased or outsourced. Otherwise, the employer risks employing workers illegally.

Walker Morris’s employment team have a specialist business immigration unit who are well placed to advise on this area. We can help with your immigration requirements by providing up to date advice and auditing your processes to ensure that you comply with the government’s immigration legislation both in terms of obtaining and managing your sponsor licence and your process and records in respect of right to work checks.

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