K PUBBI v YOUR-MOVE.CO.UK

An employer may reasonably treat a deliberate failure to disclose a matter as misconduct even where no express contractual, policy or regulatory provision requires disclosure. The question is whether, on the evidence, the employee knew or should reasonably have appreciated that the matter was serious, would concern the employer and was expected to be disclosed.

Fairness must be assessed across the end-to-end disciplinary process. An early mistaken reliance on regulatory requirements will not make the dismissal unfair where the error is addressed on appeal and the dismissal is upheld on an independent and sustainable basis. A fair opportunity to advance mitigating circumstances is sufficient; mitigation need not be invited under that express label.

The claimant, a financial consultant in the respondent’s estate agency division, was summarily dismissed after failing to disclose his bankruptcy. His authorisation with First Complete/PRIMIS was terminated, but no express contractual term, policy or applicable regulatory requirement specifically required him to disclose the bankruptcy.

The Employment Tribunal dismissed claims for unfair dismissal and disability discrimination. It found that the respondent dismissed the claimant because it believed he had deliberately withheld information which he knew, or should have known, the respondent would regard as serious. It also found the disciplinary and appeal processes fair.

The appeal was confined to the unfair-dismissal grounds. The central issues were whether the tribunal had identified a permissible conduct reason for dismissal, whether the absence of an express disclosure duty or an applicable FCA requirement made the dismissal unfair, and whether mitigation had been fairly considered.

1. Appeal dismissed. Reading the Employment Tribunal’s reasons as a whole, it had found that the principal reason for dismissal was the claimant’s conscious failure to disclose his bankruptcy. The reference to a breakdown in trust and confidence was a consequence of that conduct, not a free-standing reason for dismissal.

2. The tribunal was entitled to categorise the deliberate non-disclosure as a conduct reason. It was undisputed that the claimant had not made the disclosure. The tribunal was also entitled to find that the respondent believed he knew, or should have appreciated, that bankruptcy was a serious matter which the respondent would expect to be disclosed.

3. The absence of an express contractual term, written policy or regulatory rule requiring disclosure was not decisive. The tribunal could assess whether the respondent reasonably formed that expectation from the claimant’s financial-services experience, the ongoing fitness and propriety checks, the importance attached to compliance standards, and the evidence about the seriousness of financial soundness for advisers.

4. The tribunal did not uphold dismissal on a false premise that an FCA requirement applied to the claimant. Although the process initially involved confusion about applicable requirements, the internal appeal considered and accepted that no such requirement applied. It nevertheless upheld dismissal because the claimant should have appreciated the need to disclose the bankruptcy. Fairness was properly assessed across the whole process.

5. The tribunal was entitled to find that the claimant had a fair opportunity to advance mitigation. He explained his wish to speak to a neutral person, his social phobia and the stigma he associated with bankruptcy. Those matters were considered in the dismissal decision. The absence of an express invitation to make mitigation submissions did not render the process unfair.

6. The Employment Tribunal’s findings were supported by evidence and disclosed no error of law. The EAT could not reopen its factual evaluations or substitute its own assessment of the evidence. The dismissal fell within the range of reasonable responses.

• Employment Appeal Tribunal: appeal dismissed in [2022] EAT 96.
• Employment Tribunal: dismissed the claims for unfair dismissal, disability discrimination and failure to make reasonable adjustments.