Thompson v Informatica Software Ltd (Unfair Dismissal): EAT 13 Oct 2021

This was an appeal against the ET’s finding that the Respondent had acted within the range of reasonable responses in deciding to dismiss the Appellant for authorising the payment of the cost of a trip by a senior official of Highways England to stay and to play golf at Pebble Beach Golf Club in California.
Ground 1
The first ground of appeal was concerned with the proper interpretation of the Respondent’s Anti-Corruption Policy and whether the ET was right to find that the Respondent had been entitled to find that the Appellant’s authorisation of this trip was in breach of the Policy. The EAT held that the right approach to this question was not to treat the Policy as if it was a statute, in which there was only one right and wrong answer to the question of interpretation. The real issue was whether the ET was perverse to find that it had been open to the Respondent to interpret the Policy in a way that meant that the Appellant had breached it.
The ET had not reached a perverse decision in this regard. Indeed, both the ET and the Respondent had been right to conclude that the Appellant’s actions were in breach of the Policy. The official of Highways England was a ‘foreign official’ for the purposes of the Policy, and the expenses that the Appellant had authorised were a ‘Prohibited Payment’ as defined in the Policy. Expenditure could be a ‘Prohibited Payment’ even if there was no intention to provide a bribe or corrupt payment.
Ground 2
In Ground 2, the Appellant contended that the ET had been wrong to decide that the ET acted reasonably in finding that the Appellant had acted in ‘wilful disregard’ of the Policy, even though he had not deliberately intended to breach the policy and had no corrupt intent.
The EAT rejected this ground also. Wilful disregard meant something different from ‘deliberate’ or ‘intentional’. The Appellant, who was a senior employee, had been uncomfortable about making the payment and should have refrained from doing so, or should have explored the matter more fully, or taken advice from the Legal Department. He was aware that there was a potential problem but carried on regardless.
Ground 3
This was a perversity challenge to the decision to dismiss. The EAT rejected it. To an extent this ground overlapped with Grounds 1 and 2. Given the importance of avoiding the potentially catastrophic reputational and other damage which could arise if the Respondent committed, or was suspected of committing a breach of anti-bribery legislation in the UK, US or elsewhere, the Respondent was entitled to take a hard line against senior officials who placed it in danger in this regard by their wilful disregard of the policy.
Ground 4
The Appellant contended that there had been procedural unfairness because he was not told sufficiently clearly which part of the Anti-Corruption Policy he was alleged to have breached. The EAT rejected this ground, as the nature of the allegation against the Appellant was made clear to him in the investigation process and at the disciplinary hearing, and he was able to identify the nature of the alleged breaches in his appeal letter.
Inadequacy of reasons
The Appellant also alleged that the ET judgment was not Meek-compliant. This allegation was also rejected.

[2021] UKEAT 2020-000463
England and Wales


Updated: 22 November 2021; Ref: scu.668645