Human Kind Charity v Gittens UKEAT/0086/18/BA

Appeal against the ET’s judgment upholding the Claimant’s claim for wrongful dismissal. Appeal allowed.

The Claimant, who was employed as an Area Manager by the Respondent, was summarily dismissed for gross misconduct on grounds of dishonesty. She brought various claims in the ET including for wrongful dismissal, and the ET upheld her wrongful dismissal claim on the basis that her conduct did not amount to a fundamental breach of her contract of employment and so she was entitled to her notice pay. The Respondent appealed on the grounds that the ET (1) applied the wrong legal test with regard to a case of dishonesty, by misapplying the case of Ranson v Customer Systems Plc [2012] EWCA Civ 841, and (2) wrongly focused solely on whether there was an express term within the Claimant's contract requiring her to disclose any wrongdoing.

The EAT held that the ET erred in law when relying on Ranson, and on the absence of a duty on the Claimant to disclose her own wrongdoing, to support a finding that she was not in repudiatory breach of contract; the EAT stated that the right to remain silent (where it exists) is not the same as a right to say something that is not true and, in confusing those questions, the ET erred in law. Accordingly, the EAT would not remit the matter, and it set aside the award of notice pay that the ET had made by way of damages for wrongful dismissal.

Published: 18/03/2020 18:22

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