Do Employees Have a Duty to Report Their Own Wrongdoing When Carrying Out Internal Investigations?

Facts

Human Kind Charity employed Ms Gittens as an Area Manager. Ms Gittens had responsibility for a team of approximately 30 people and her team had use of an iPad. In May 2016, data charges amounting to £8,523 were incurred on the iPad. Ms Gittens agreed to investigate the charges and concluded in her report that she could not "narrow down" the charges to any specific individuals.  The charity was not satisfied with Ms Gittens' findings and commissioned a separate investigation.  During this investigation, Ms Gittens admitted that the iPad was in her possession at the time the charges were incurred. She knew this but sought to mislead her employer by proving erroneous findings. Ms Gittens was summarily dismissed for gross misconduct following a disciplinary process on the basis of:

a) incurring the data charges without permission; and

b) submitting a false investigation report.

Employment Tribunal

Amongst other claims against the charity, Ms Gittens made a claim of wrongful dismissal which was upheld by the Employment Tribunal. The Tribunal, relying on Ranson v Customer Systems Plc which suggests that in the absence of an express contractual provision an employee does not have the same fiduciary duty as a director, noted that there was no express term in Ms Gittens' employment contract requiring her to disclose her own wrong doing. 

Employment Appeal Tribunal (EAT)

The EAT disagreed and found that the Employment Tribunal had erred in law. Ranson concerns remaining silent about wrongdoing whereas in this case Ms Gitten had knowingly provided her employer with false information. In finding whether a dismissal is wrongful, it is necessary for a tribunal to decide, objectively, whether the employee was responsible for a repudiatory breach of their contract of employment. The EAT considered that Ms Gittens had acted dishonestly, covering up her own responsibility in the matter by delivering a report which was untrue. Dishonesty usually justifies summary dismissal at common law on the basis that it undermines the employment relationship.

Considerations for Employers

This case acts as a reminder to employers that there is an implied duty of trust and confidence in employment contracts. Providing dishonest or misleading information to an employer to conceal wrongdoing would be a breach of this duty of trust and confidence. However, for any subsequent dismissal not to be wrongful, there must be an objective finding of dishonesty. The employer's subjective belief of the employee's breach is not sufficient. Therefore should an employer suspect that an employee has acted dishonestly, they must conduct an investigation to substantiate the allegation before taking steps to dismiss. It is also important that the employer acts proportionately. If the transgression is very minor and has no material impact on the  employer's business or causes no loss, it is unlikely to justify summary dismissal.

For more information on internal investigations, please contact Joanne Oliver in our Employment Law team on 0117 314 5361, or complete the form below.