EAT upholds dismissal of senior legal executive

A legal executive at Swansea City Council was fairly dismissed, the Employment Appeal Tribunal has found after a series of appeals lasting four years.

Senior legal executive Malcolm Honey had worked for the council for 30 years but was found in disciplinary proceedings to have claimed sick pay while on holiday, and not been truthful in his answers on return to work.

On internal appeal the substantive charges against Honey, who was paid £30,000 a year, were dismissed with the council accepting that he was sick at the time. However, the dishonesty in the return-to-work interview was upheld and he was dismissed on the basis of a breach of mutual trust and confidence.

Honey was initially successful in a claim for unfair dismissal, but that judgment was set aside in a series of three appeals. He then appealed to the EAT.

The EAT said: “This is a public sector employer. The claimant was employed to represent the respondent and give evidence before courts. On findings that he was dishonest about his conduct during June 2006, the respondent could not have trust in him to carry out his duties. The respondent looked carefully at his unblemished record for almost 30 years, but that did not overcome the difficulties.”

It concluded: “In our judgment the Employment Tribunal was entitled to hold the concerns found by the respondent were those of a reasonable employer and dismissal was within the band of reasonable responses.

“It must be borne in mind that it is the fairness of the respondent’s conduct which is in issue here. It is in the best position to know what standard is required of its senior legal executive. We cannot say that the Tribunal was wrong to hold that the employer’s depiction of his actions as breaching the implied duty of trust and confidence is wrong. It was a permissible option for this employer and the Tribunal made no error in upholding the judgement of the respondent.”

The EAT ruled that the Employment Tribunal had carried out all three steps in the Employment Act 2002 regime, and had also correctly rejected Honey’s claim of disparity of treatment on the basis that the comparator was not apt as he was not required to conduct legal work.