• Rose and Rose Solicitors

Charity Director's Misconduct Made Dismissal Inevitable

No matter how gross an employee's suspected misconduct may be, it is always vital to approach matters with an open mind. However, in Soll (Vale) v Jaggers, the Employment Appeal Tribunal (EAT) ruled that the dismissal of a former charity director who doctored his own employment contract with a view to personal gain was inevitable.

The man had been in 'without prejudice' negotiations with the charity's board of trustees with a view to agreeing terms for the termination of his employment. He was suspended during an inquiry into his conduct and faced seven disciplinary charges.Another was added after evidence emerged that, during the course of the negotiations, he had altered the terms of his contract in a bid to improve his position.

One of the modifications to the original contract purported to increase the period of notice to which he was entitled from three months to 14 months. He was ultimately found guilty of that and three other charges and summarily dismissed for gross misconduct.

After he launched proceedings, an Employment Tribunal (ET) found on the balance of probabilities that he knew that he was presenting a false document and that he was responsible for the alterations. The ET nevertheless found that his dismissal was unfair in that the person who made the dismissal decision had himself uncovered the matters that had led to the initial seven charges, and had prejudged the issues and approached the matter with a closed mind.

Although the ET accepted that the man's conduct had contributed to his dismissal, it did not consider that it was appropriate to make any reduction under Polkey to the amount of his compensation nor that there should be any reduction in the award greater than 10 per cent.

In overturning that decision, the EAT found that, given the nature of the former director's misconduct, his employment would have been terminated in any event. The ET's conclusion to the contrary was perverse. In the circumstances, he had suffered no loss and his compensation was assessed at nil.

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