239: Manager covering up her own misconduct was fairly dismissed

In Human Kind Charity v Gittens, the Employment Appeal Tribunal (EAT) has allowed an appeal against an Employment Tribunal’s finding of wrongful dismissal, ruling that the Charity had been entitled to dismiss a manager for submitting a false investigation report which covered up her own misconduct.

Ms Gittens was an Area Manager for Human Kind Charity, with responsibility for a team of approximately 30 people. The Charity received a bill of £8,523 relating to mobile data charges on an iPad used by her team. Ms Gittens was asked to investigate the charges. In her report, she concluded that she could not narrow down the charges to any one person and did not think it fair for anyone to be blamed for the bill as there had been no intentional wrongdoing. The Charity was unhappy with her report and undertook another investigation. Ms Gittens then admitted that she had been in possession of the iPad when the charges were incurred. Following a fair disciplinary process, she was summarily dismissed for gross misconduct on grounds of dishonesty.

The Employment Tribunal upheld Ms Gittens’ claim for wrongful dismissal, finding that her dishonesty had to be considered in light of the principle that she was not under a contractual or fiduciary duty to investigate and report her own wrongdoing. Since Ms Gittens had no duty to disclose her own misconduct, she had not fundamentally breached her own contract of employment.

The EAT overturned this decision, ruling that the Tribunal’s reasoning was wrong in law. The Tribunal was wrong to focus on the lack of an express contractual term requiring Ms Gittens to disclose her own wrongdoing and had mistakenly relied on the case of Ranson v Customer Systems Plc. The Ranson case concerned an employee’s silence on their own wrongdoing, rather than knowingly providing false information. Ms Gittens had intentionally submitted a false investigation report and had therefore clearly committed a fundamental breach of her contract entitling the Charity to dismiss her without notice.

As the EAT noted in this case, there is an important distinction between an employee remaining silent about their own wrongdoing, and making a positive statement which is dishonestly untrue. An employee who submits a false investigation report about their own wrongdoing cannot be protected by a right not to incriminate themselves. It should be noted that although there is no general obligation for an employee to disclose their own wrongdoing, there may be an express or implied duty to disclose in certain circumstances, such as where there is a safeguarding risk. Employees who are also directors or trustees will owe a separate fiduciary duty to disclose their own misconduct.