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Employee’s evasive and inconsistent responses to disciplinary investigation amounted to a breach of trust and confidence

Posted by TonyBrownEmploymentSolicitor on April 27, 2016

Although originally developed as a means of enabling employees to complain of constructive dismissal when faced with oppressive behaviour by employers, the implied duty of trust and confidence is now used to regulate conduct on both sides.

In the next case, an employer was entitled to treat an employee’s inconsistent answers during a disciplinary interview as amounting to a breach of trust and confidence tantamount to gross misconduct.

The Claimant in that case worked for House of Fraser in its Oxford Street store.

As part of an investigation into the theft of stock from the store, the employer monitored sales on eBay and noticed that that an eBay account registered to the employee’s home address but in a different name to the Claimant’s had been selling items that matched stock that had disappeared from the store.

When she was asked about this, the Claimant said she did not know who had opened the eBay account but that her ex-husband had admitted using her address and that he had a key to her flat. She told her employer that she did not know where her ex-husband lived or when she last saw him. Although she said that she had her ex-husband’s telephone number, she declined to give it to the employer to allow it to approach him.

At her disciplinary hearing the Claimant continued to deny any wrongdoing and maintained that her ex-husband had used her address without her knowledge and he possessed a key to her flat.

The Claimant was summarily dismissed, not for any dishonesty, as the employer felt that it did not have enough evidence to conclude that the Claimant was implicated in the theft of stock from the store, but rather because of the Claimant’s inconsistent and suspicious answers to questions posed in the course of the investigation which the employer decided led to a loss of trust and confidence in the Claimant.

The Claimant brought a claim for unfair dismissal in the employment tribunal.

The ET accepted that the Claimant's behaviour at her disciplinary interview (which it condemned as inconsistent, unhelpful and suspicious) justified the employer’s decision that there was a breakdown in trust and confidence. However, by failing to seek evidence from the ex-husband the employer had not carried out a proper investigation into the Claimant’s explanation that her ex-husband had set up the eBay account from her address without her knowledge. 

The EAT allowed the employer’s appeal against the finding of unfair dismissal. The EAT said that the tribunal’s conclusion that the Claimant’s dismissal was unfair was based on a finding that the employer had failed to seek evidence from the Claimant’s ex-husband. That finding, however, was perverse given that the tribunal had also found that the employer had pressed the Claimant for the ex-husband’s contact details, and it was the Claimant (who had the contact details) who declined to pass them on to the employer and who failed to produce evidence from her ex-husband (with whom she was in contact).

A finding of fair dismissal was substituted for the ET's decision.

Comment

Although the implied duty of trust and confidence was originally developed as a means of enabling employees to complain of constructive dismissal when faced with oppressive behaviour by employers, it is now used to regulate conduct on both sides.

In this case, the ET accepted that the employer was entitled to treat the Claimant’s inconsistent answers during a disciplinary interview as a breach of trust and confidence, giving the employer grounds to dismiss in circumstances in which the employer believed it had insufficient evidence to conclude that the Claimant was implicated in the theft of stock from the store.

Disclaimer

This article is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This article is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.