United Kingdom Employment Appeal Tribunal

“They found a number of documents there, showing that the Claimant had worked on, or at least opened and presumably looked at, documents that did not relate to his work for the Respondent, some of those documents being viewed in office hours.  On further enquiry it was apparent that the Claimant was working for an organisation called PI Global Partners Limited, at the time when he was employed by the Respondent.  Although the evidence does not point to extensive activity for PI Global in the office hours of the Respondent, there was some such activity on the evidence I have seen.”

“(a) Misusing and/or divulging confidential information by passing this information to a competitor;

(b) Acting in a manner which either amounted to fraud, theft or dishonesty by working for a company which was illegitimate;

(c) Working for PI Global Partners Limited during office hours and performing such work that was inconsistent with his position at the Respondent company; and

(d) An irrevocable breach of the implied term of trust and confidence.”

“(i) The Claimant did some work, or at least read emails connected with PIG, in the office hours of the Respondent.  That is about as far as it goes.  There was no evidence before Mr McHugh that the Claimant actually had divulged confidential information, either to Mr Shillingford or to PIG.  Further, although the Respondent asserted that PIG was not a legitimate company and was being investigated by the FSA, I was shown no evidence that this was the case.

(ii) PIG are not competitors of the Respondent.  Further, there is nothing in the Claimant’s contract of employment that prohibits him working for another employer contemporaneously with his employment with the Respondent, although one might have expected him to declare this to the Respondent.  There is no evidence of breach of confidence by the Claimant.  The use by PIG of the Respondent’s premises as a business address was not established as being something that the Claimant arranged or was even within his knowledge.  It appears to be something arranged by Mr Amamize.

(iii) I conclude that it has not been established on the evidence that the Claimant was guilty of such serious misconduct, by reason of his association with the PIG, as to justify his summary dismissal.  His conduct as established by the evidence merited no more than consideration of a warning that his employment by PIG might impinge on his work for the Respondent and that – if he had been – he should not continue to conduct business for PIG in the Respondent’s office hours.  The suspicions of Mr McHugh that the Claimant’s sales performance was substantially harmed by his relationship with PIG was not in fact backed up by evidence.  The Claimant is therefore entitled to his one month’s notice or pay in lieu of notice.”

“Throughout the Claimant’s responses to the Respondent’s questions were evasive and the Respondent could not reasonably hold any faith in the Claimant’s responses.”

(1) There is a clear finding by the Employment Judge that Mr Martin initially denied working for PI Global at all. It is not easy to see how Mr Martin could have been mistaken.  It would therefore seem to follow, although the Employment Judge does not expressly say so he was dishonest about this matter at the meeting on 23 October.

(2) Mr Martin’s ET1 set out his version of the meeting on 23 October.  He did not admit in his ET1 that he denied working for PI Global.  It is unclear what his evidence on this point was at the Tribunal; I cannot tell whether he maintained this position in his ET1 when he gave evidence (in which case the Employment Judge must have reached an adverse view of his credibility as a witness) or whether he admitted the matter at the Tribunal. 

(3) There is no clear finding by the Employment Judge that Mr Martin denied using the computer for work for PI Global during CCL time, although the notes of the meeting on 23 October 2009 credit him with saying this.  If he said it, the question would then arise whether this was also dishonest. 

(4) CCL’s case was that it could be seen from the records produced that he did work on PI Global matters during company time. The Employment Judge’s finding, which I have already quoted, is somewhat equivocal.

(5) The Employment Judge said that Mr Martin “played down” his involvement with PI Global.  It is unclear whether the Employment Judge considered that Mr Martin was dishonest in this respect.