Obligation to notify employer of a criminal allegation or arrest

The starting point for determining whether you can require employees to tell you of any wrongdoing outside of work, for example any criminal arrests, lies within the contract governing the employment relationship.

Some contracts of employment may require employees to report their own “wrongdoing” to their employer. Unless the requirement specifically refers to wrongdoing outside of work (i.e. the obligation is not limited to any close connection with the contractual relationship), this obligation may be unlikely to extend to any arrest outside of work. This is particularly relevant due to what is known as the “Contra proferentem” rule.

The Contra proferentem rule relates to a situation where there is ambiguity or doubt within the meaning of the contract and the contract shall be read in favour of the party who did not draft or is not relying on the contract. In most cases, it is often the employee who would try to rely on this rule.

It may be the case that the employer wishes for an obligation to be included within the employment contracts which require employees to disclose any criminal conviction or caution, though, in order to ensure this is not a disproportionate burden on the employee, it may be restricted so that such obligation does not extend to minor motoring offences. The relevance of this exception may depend on the job as it may be prudent, for example, for employers of a haulage company to be aware of any minor driving offences of employees both within and outside of their scope of work, as it may impact their ability to undertake their job role properly.

In the 2014 Employment Tribunal case of Basildon Academies v Amadi, an individual working in a school as a cover supervisor was dismissed when the school had been told by the police that an allegation of sexual assault had been made against the individual at another place of work, a few months prior. Mr Amadi worked 2 days at Basildon and 3 days at a different school, at which the allegation was made against him.

Mr Amadi had not informed the school that he had another place of work nor that an allegation of sexual assault had been made against him. Mr Amadi was dismissed by Basildon for gross misconduct in failing to notify the school of both matters.

Mr Amadi brought a successful claim of unfair dismissal due to the fact there was no express contractual obligation, or policy in place, requiring the individual to inform the school of any such allegations.

The judgment concluded:

“132. Had [the disciplinary officer] looked at the Code of Conduct applicable to the Claimant, she would have seen that the Code of Conduct, itself, does not state that employees are required to report allegations against them. As the Tribunal has found, it is the whistle blowing policy which refers to a duty to report allegations, but even that policy is not clear that allegations made elsewhere, not in the current employment, are to be reported under the whistle blowing policy. 

133. While [the disciplinary officer] was of the view that the Claimant ought to have reported the allegation against him, she undertook no reasonable investigation into what the relevant policies stated and what the Claimant had been told. There was no reasonable evidence upon [which] she could conclude that the Claimant ought to have reported the allegation. Her decision to dismiss the Claimant for failing to report the allegation, when there was no evidence of a rule that he should report it, was outside the band of reasonable responses of a reasonable employer.”

Though it was made clear that the ruling in this case was heavily fact specific, employers may wish to review their employment contracts and policies to ensure their expectations in relation to informing and reporting to the employer are reflected accurately within these documents. In line with the judgement of this case, it may be necessary for any such disclosure obligation to be qualified in that the allegation or arrest should have some bearing on the particular sector of the employer, perhaps in relation to its reputation.

It is noteworthy that the compensation awarded to Mr Amadi was reduced by 30% as he had failed to inform his employer of his second job, and this was contributory towards his dismissal.

Generally, if there is no specific contractual term, employees are not under an obligation to disclose their own wrongdoing. However, if an individual is a director, they may have an implied duty, for example, the duty of good faith/ fidelity, and may be deemed required to notify the company of any such wrongdoing. If the employee has a more senior position, or a director position, this implied duty is likely to be more applicable.

Rollits’ employment team can assist with the review or drafting of employment contracts and policies and procedures to ensure the reporting obligation is adequately covered we can also advise as to whether failing to disclose is an act of misconduct.