Honey v. City and County of Swansea

In a misconduct dismissal, an employer may proceed under disciplinary procedures where it reasonably suspects dishonesty, even if an absence-management procedure might also be available. Statutory disciplinary steps are satisfied where the letters, read in context, fairly identify the allegations and the employee has a proper opportunity to answer them, including on appeal. Under Employment Rights Act 1996, section 98, the tribunal must assess the employer’s genuine reason, investigation and sanction by reference to the range of reasonable responses. Comparators must be truly parallel; differences in seniority, responsibilities and the trust required by the role may justify different disciplinary outcomes.

Mr Honey, a senior legal executive employed by the City and County of Swansea for over 30 years, was dismissed for gross misconduct. He had been accused of claiming sick pay while on holiday, failing to disclose the holiday and breaching the implied term of mutual trust and confidence.

On appeal, the substantive allegations concerning the holiday and sick pay were rejected, but the finding that Mr Honey had been dishonest in return-to-work and investigatory interviews was upheld. An Employment Tribunal found that the statutory disciplinary procedure had been followed and that the dismissal was fair. Mr Honey appealed, arguing that the dishonesty allegation had not been properly notified, that the statutory procedure was defective, and that a comparator had been treated more leniently.

1. Appeal dismissed. The Step 1 and Step 2 correspondence, read in context with the meeting records and transcripts, made clear that dishonesty in the return-to-work process was part of the case throughout. The allegation was therefore properly advanced through the statutory disciplinary procedure and appeal.
2. The statutory disciplinary steps did not require technical drafting. They required the employee to understand what was alleged and the case to be met. The Employment Tribunal was entitled to find that Steps 1 and 2, followed by the appeal, were completed.
3. For the purposes of Employment Rights Act 1996, section 98(1) and (2), the Tribunal correctly identified conduct as the reason for dismissal. It properly applied the misconduct principles in British Home Stores Ltd v Burchell and considered whether there had been a reasonable investigation and whether dismissal fell within the range of reasonable responses. The issue was the fairness of the employer’s conduct, not whether the Tribunal would have imposed the same sanction. The Respondent was entitled to attach particular importance to honesty in a senior legal executive.
4. The disparity argument failed. Comparators must be in truly parallel circumstances, and such arguments should be used sparingly. The Tribunal was entitled to distinguish a mobility assistant from a senior legal officer whose work required repeated representation of the Respondent and the exercise of significant trust.

• Employment Appeal Tribunal: dismissed Mr Honey’s appeal from the Employment Tribunal’s judgment, which had found the dismissal fair and the statutory disciplinary procedure satisfied.
• Employment Tribunal: after earlier judgments had been set aside and the matter remitted, found that the reason for dismissal was conduct, that the statutory procedure had been followed, and that dismissal was within the range of reasonable responses.