Not long ago we acted for a company client who had dismissed a manager for gross misconduct involving fraud. One element comprised false expenses claims. The other, claims for a purported overtime entitlement. 
“Just a minute – a manager claiming overtime?” Indeed. A salaried manager, to be precise, serving under a contract that referred to his starting salary and his normal working week of 37 hours. However, rather than refer to the occasional need for such an employee to exceed normal hours, with the implicit incentive of future salary increases and promotions, the contract had gone on to say “some overtime will be expected in line with your role”. 
The manager, no doubt encouraged by what the company handbook (a non-contractual document) said about overtime in the context of hourly paid staff, proceeded to help himself to £7,000 worth of extra pay for his purported extra hours. When brought to book, he sought to claim rather fancifully that there had been a “culture” of salaried staff being paid overtime, even referring to one instance of authorisation being given to a secretary….. by him. He even claimed that his actions had effectively been sanctioned by senior overseas management when he had complained of being underpaid. 
On this occasion, there was no tribunal claim, and a balance was struck over the recovery of the wrongful payments. It still left a question over how much of the dispute could have been avoided if the remuneration clause had been more carefully worded. 
This leads neatly into the recent case of Fekete v Citibank, almost involving a different type of greed. One of Mr Fekete’s expenses claims for an Amsterdam trip was challenged because it appeared to be for two sandwiches, two coffees and another drink. He claimed to have consumed everything himself. A further anomaly was raised. His rebuttal: “I don’t think I have to justify my eating habits to this extent”. Citibank was aware that he had taken his partner with him (she was not a Citibank employee), and asked if he had shared the meals with her. He initially stood his ground in an evasive manner. Having finally conceded that he did share the meals, he was called to a disciplinary hearing on charges of making a false expenses claim and misrepresenting the position to investigators. 
The tribunal upheld his dismissal for gross misconduct as fair. He had been employed in a position of trust. The comparatively low sums of money did not matter. The evasiveness and dishonesty did. Mr Fekete had made a knowingly false expenses claim, and covered it up instead of owning up at the first opportunity. His mitigation – stress, medication reaction, bereavement grief and a desire not to tell the investigators that his partner had accompanied him – did not make his dismissal fall outside the range of reasonable responses. It is difficult to avoid inferring that the tribunal thought the claim should never have been brought. 
Are there any lessons for employers here? Not really – more a matter of reassurance. The small amount at stake was irrelevant. As the French proverb has it, “qui vole un oeuf, vole un boeuf” – he who steals an egg will steal an ox. Or, as many a British politician will sadly reflect, “it’s not so much the lie, it’s the cover up that gets you”. 
Do you have a misconduct issue to address? Not quite sure how gross it is? Or an ambiguous contract to tidy up before someone takes advantage of it? Get in touch. Contact David Cooper on 0212 325 5402 or via . 
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