Employment Law Case Update - June 2015
In June's employment law update, Burnetts' employment law solicitors look at the latest case law update.
Duty to Disclose Allegations of Misconduct?
The Employment Appeal Tribunal (EAT) has recently made it clear, in the case of Basildon Academies v Amadi, that, unless the contract specifically requires the employee to disclose a situation arising outside of work, there is no obligation on an employee to do so, even in situations where the allegation, activity or situation is so sensitive that there is a real threat to the reputation of the employer.
Mr Amadi was a work based learning tutor at Basildon Academies. He also worked part time at Richmond upon Thames College.
Mr Amadi had been suspended by Richmond College after he was accused of sexually assaulting a pupil. The police investigated the allegations but took no action against Mr Amadi. However, a few months later, the police contacted Basildon Academies to explain that they were still investigating Mr Amadi and to ask about his employment with them.
On learning about the allegations, Basildon Academies suspended Mr Amadi and ultimately dismissed him for not reporting the allegations to them.
Mr Amadi sued for unfair dismissal and was successful in the Employment Tribunal. Basildon Academies appealed, arguing that there was an implied duty on an employee to report allegations such as this which had a serious impact on the employee’s suitability for his or her role.
EAT held that there was no implied term that 'an employee must disclose to his employer, in the absence of an express contractual term requiring him to do so, an allegation of impropriety '.
Employers who want to be told of any allegations or potential criminal action which might be taken against an employee for something arising outside of their employment need to expressly cover that in their contracts of employment.
Employers who want to check whether their contracts are robust enough to cover this or who would like to add something of this nature into their contracts should contact Natalie Ruane at Burnetts firstname.lastname@example.org. or 01228 552222.
Expressing Religious Views at Work
Although the case law in this area goes back and forth, the recent case of Mbuyi v Newpark Childcare (Shepherds Bush) Ltd is one where the employee was held to have been unfairly dismissed for expressing negative, faith related views about her lesbian colleague.
Ms Mbuyi, was employed as a nursery nurse. She was a committed and practicing Evangelical Christian. Although she did not specifically talk about her faith at work, Ms Mbuyi was open about her views if asked about them by her colleagues.
Although not friends, it was accepted that Ms Mbuyi had been kind and supportive of her colleague, Laura, after an accident. It was also specifically mentioned that Ms Mbuyi had given Laura a Bible on her return to work after the accident, so Laura was fully aware of Ms Mbuyi’s faith, and that Laura had thanked her for the gift.
However, Laura complained about comments that Ms Mbuyi had later made about her sexual orientation including the statement “Oh my God, are you a lesbian?” Laura was a lesbian living in a civil partnership and, although she had not hidden this from her colleagues, it transpired that Ms Mbuyi had not been aware of it.
Ms Mbuyi’s defence when challenged about making the comments was that Laura had asked her about her beliefs and views on homosexuality and that Laura had specifically asked her whether she would be welcome at Ms Mbuyi’s church. Ms Mbuyi’s employer didn’t accept that this justified the negative and potentially homophobic response given by Ms Mbuyi and she was dismissed.
There were a number of procedural errors which led the Tribunal to decide that Ms Mbuyi’s dismissal was unfair but the word of caution arises from the Tribunal’s findings that, rather than listening and giving fair consideration to Ms Mbuyi’s defence, her employer had made assumptions that the views of Evangelical Christians towards homosexuals were unacceptable.
The Tribunal specifically commented that more should have been done to establish why the discussions about Laura’s sexuality were taking place and that more weight should have been given to the fact that Laura had prompted the discussion in full knowledge that Ms Mbuyi’s views may well be unpalatable to her.
This is a first instance decision and so is not necessarily one on which employers can rely but it is still interesting to note that Tribunals are still grappling with the balance between religious freedoms and other protected characteristics. Employers faced with such challenges should take advice as soon as possible. Natalie Ruane and the team at Burnetts would be happy to help.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Thursday 25th June 2015