Human Kind Charity v Gittens

An employee’s entitlement to remain silent about personal wrongdoing, where such an entitlement exists, does not permit the employee to give a dishonest positive response to an employer’s enquiry. A tribunal must distinguish a case concerning non-disclosure from one in which an employee, having undertaken an investigation, submits a report known to be untrue.

Wrongful dismissal turns on the objective question whether the employee committed a repudiatory breach of contract. Dishonestly concealing personal responsibility in an investigation report may destroy trust and confidence and justify summary dismissal. Where the tribunal’s findings admit only that conclusion, the appeal tribunal may set aside an award for notice pay without remittal.

The claimant, an area manager employed by the charity, was summarily dismissed for dishonesty after submitting an investigation report concerning substantial iPad data charges. The Employment Tribunal dismissed her unfair-dismissal and discrimination claims, but unanimously upheld her contractual claim for three months’ notice pay on the basis that she had not committed a fundamental breach.

The employer appealed only the wrongful-dismissal finding. It contended that the Tribunal had wrongly treated Ranson v Customer Systems plc [2012] EWCA Civ 841, concerning an employee’s disclosure of personal wrongdoing, as excusing a dishonest investigation report. The central issue was whether the Tribunal’s findings compelled the conclusion that the claimant’s conduct was repudiatory.

1. Appeal allowed. The Employment Tribunal erred in law in relying on Ranson to hold that the claimant was not in repudiatory breach of contract. Ranson concerned silence and the possible duty to volunteer disclosure. It did not govern an employee who gave false information in a report she had agreed to prepare.

2. The distinction was decisive. The Tribunal had found that the claimant’s statement that she could not identify the user of the iPad was untrue and that the report contained dishonesty. She was dismissed for intentionally submitting a false investigation report, not for declining to answer a question or for failing to volunteer an admission. A right to remain silent, where it exists, is not a right to make a dishonest statement.

3. The contractual issue was objectively whether her conduct amounted to a repudiatory breach. The pleaded and disciplinary basis for dismissal engaged the implied mutual term of trust and confidence, recognised in Malik and Mahmud v Bank of Credit and Commerce International [1998] AC 20. Her dishonest report concealed her responsibility for the very matter she had undertaken to investigate. That conduct destroyed trust and confidence and was repudiatory.

4. Applying Jafri v Lincoln College [2014] ICR 920, remittal was unnecessary. On the Tribunal’s findings, no properly directed tribunal could reach any conclusion other than repudiatory breach. The award of notice pay for wrongful dismissal was set aside.

• Employment Appeal Tribunal: Allowed the employer’s appeal and set aside the Employment Tribunal’s award of damages for wrongful dismissal.
• Employment Tribunal: By judgment and reasons dated 1 November 2017, dismissed the unfair-dismissal and direct-discrimination claims but upheld the contractual notice-pay claim. No citation for that judgment was stated.