Employment Law Cases

Thompson v Informatica Software Ltd

The dismissal of an employee was fair because he’d acted in ‘wilful disregard’ of an anti-corruption policy, even though he’d not deliberately intended to breach the policy and had no corrupt intent.

Background

Mr Thompson worked for Informatica Software (IS) in a senior capacity, as a Vice-President UK & Ireland, with a principal focus on sales. He authorised a trip to Pebble Beach Golf Club in California by the Sales Manager, Public Sector UK and Ireland, and a customer, the Chief Information Officer and IT Executive Director of Highways England, on the basis that the cost of the trip (which included an overnight stay) would be paid for by IS. Mr Thompson was dismissed for gross misconduct, his dismissal letter stating that the authorisation of this trip to entertain a public sector/government customer was in breach of the IS’s policies and procedures. The relevant policies and procedures were the Anti-Corruption and Compliance Policy, the Global Travel and Expenses Policy, and the Code of Business Conduct. Mr Thompson’s unfair dismissal complaint was rejected by a tribunal and he appealed.

EAT decision

The appeal was dismissed.

There were four grounds of appeal but only two are discussed here: the interpretation of the anti-corruption policy and whether Mr Thompson had acted in ‘wilful disregard’ of it.

Regarding interpretation, Mr Thompson argued that the tribunal had misinterpreted the policy in two respects. It should, he claimed, have found that he wasn’t in breach because the Highways England official wasn’t a ‘foreign official’ (as defined in the policy) and because the policy only prohibited ‘corrupt’ payments or benefits (and IS had accepted that Mr Thompson had no corrupt intention).

The EAT held that to adopt a rigid and technical approach to the meaning of words in the policy missed the point. The policy should not be looked at as a contract or statute but the tribunal should ask itself whether a reasonable employer could have adopted the construction it did – ‘it would be wholly artificial for the tribunal or the EAT to approach the application of the policy … without reference to the fact that the policy is designed to be operated by lay persons not lawyers’. The purpose and thrust of the policy was two-fold:

1. to make clear to employees that they should expect to be held to the highest ethical standards, and that they have a responsibility to ensure that the employer’s reputation is not damaged by the actions of its employees, and
2. to make clear that the detailed legal rules are complex, and that, where an employee is in any doubt of the propriety of their action, or as to whether the risk of a breach of the legislation arises, they should not just carry on regardless, but should take the advice of the legal department or of HR

It follows, said the EAT, that the clear message sent by the policy is that employees should err on the side of caution when considering whether to provide benefits to customers. They should steer clear of anything that might run the risk of being unlawful, and if they are in any doubt, they should seek the advice of legal or HR. The tribunal’s conclusion on this aspect could not be faulted.

As regards whether Mr Thompson had ‘wilfully disregarded’ the policy, the EAT commented that ‘wilful disregard’ is something different from a deliberate breach. Mr Thompson was not dismissed because he had deliberately set out to authorise an improper expenses payment or because he had deliberately set out to breach the anti-corruption policy. Rather, as Mr Thompson admitted, he proceeded to authorise the payment even after the likely cost had become known, and even after he had felt uncomfortable about the trip. He accepted that he had overlooked or was unaware of the policy, and that he did not give the matter enough attention. He agreed that he should have cancelled the trip. He was aware that there was a concern about the trip, but he did not check the policy before giving the go ahead for it, and he did not check with Legal or with HR.

Mr Thompson knew there was a policy, he knew that there was a potential problem with the trip, but he chose to go ahead and to authorise the trip without checking up or seeking advice. In addition, he was a very senior employee, who signed a document every three months to confirm that he had read and understood the policy. Giving ‘wilful disregard’ its normal and sensible meaning, the tribunal was entitled to find that the employer acted reasonably in finding Mr Thompson to be in wilful disregard of the policy.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/2020-000463.html

Comment

This case should send a warning shot to all senior executives about signing off trips of this kind and the potential impact on their own jobs. Executives at all levels need to understand and adhere to anti-bribery and corruption policies, which reflect the stringent laws in this area.