Allegations of misconduct

Allegations made against a member of staff in a school, college or university can be very damaging to everyone involved.  These are not easy situations to deal with, but particularly so if the individual seems to have deliberately not told you about those allegations.

In those circumstances there might be the temptation to dismiss that individual, and with the issues that have emerged in recent years regarding safeguarding, you would not necessarily be blamed for a knee-jerk reaction because you do not want to take a chance on the allegations being true or not.  However, management must be aware that accusations of an incident taking place, or even the hiding of them by the individual concerned, may well not be enough of a reason to dismiss that member of staff.

If you have an express term in a contract or a clear statement in a policy that requires staff to tell you about any allegations made about them, then you may be within your rights to consider a dismissal.

However, a recent employment law case has confirmed that if there is not such an express term in the contract of employment or it is not set out clearly in a policy, a tribunal will not help the employer by implying into the contract a term that the employee should have informed their employer about the allegations.  As a result, in those circumstances any dismissal of the member of staff on the basis that they hid the allegations is likely to be held to be an unfair dismissal.

In the case in question, an academy concluded that a member of staff had deliberately decided not to inform them that he was working at another college outside of his hours at the academy.  In addition, he had also not informed the academy about an allegation of sexual misconduct which had arisen at the college.

The academy felt that hiding his other job and the allegations amounted to acts of gross misconduct and so he was dismissed.  However, the teacher then went on to succeed in a claim of unfair dismissal.  There had been no express term in his contract which required him to disclose that information, nor had there been a clear statement in a policy. 

Whilst in some circumstances it can be implied that an employee is under a duty to disclose their own misconduct, there is no law that an employee must disclose to their employer allegations of wrongdoing.

This case reminds us that contracts and policies must be prepared carefully so that a requirement for staff to disclose to you any allegations of misconduct, as well as whether they are working elsewhere, is made clear.  It also reminds us that before dismissing for misconduct, management should ensure that they have read through their own policies to check the reasons for dismissal stated therein.

Your action plan:

  • Review all policies and contracts to check what they say about this type of situation.
  • Consider whether they should and can be changed.
  • Keep this case in mind when potential disciplinary matters arise and take advice about which you are confident.

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.