Employment Team E-Bulletin - June 2017 II

Honesty and Integrity in Employment and Disciplinary Proceedings - an update

A fortnight ago, I drafted an e-bulletin commenting on the tension between two recent cases: Malins and the case of Thames Valley, following hot on Malins’ heels. That e-bulletin can be viewed here.

Cited Cases

The Issue

In short, the tension was this; Malins said there was no real distinction between honesty and integrity, whilst Thames Valley reverted to the commonly understood position that there was a distinction. This is important because misconduct offending the principle of integrity is viewed less seriously than a breach involving dishonesty.

In the last e-bulletin I disagreed with the conclusions in Malins and described the case as a case law cul-de-sac. I was right.

Williams v SRA

Williams was a solicitor who became involved with a transaction relating to a property. This, eventually, resulted in a complaint against him and he found himself facing professional disciplinary proceedings. The case brought against him alleged breaches relating to both honesty and integrity. I do not propose to go into any greater detail because these proceedings are likely to be ongoing.

However, for our purposes, two paragraphs are key, para 54 and para 130.

At para 54, Carr J giving the lead judgment, after referencing Malins, stated:

...in the field of solicitors’ regulation, the concepts of dishonesty and want of integrity are indeed separate and distinct. Want of integrity arises when, objectively judged, a solicitor fails to meet the high professional standards to be expected of a solicitor. It does not require the subjective element of conscious wrongdoing.” 

If that wasn’t enough, these comments were bookended by the supporting judgment of Sir Brian Leveson. At para 130 he stated:

I ought to make it clear that, in the absence of compelling justification, I would reject Mostyn J’s description of the concept of want of integrity as second degree dishonesty. Honesty, i.e. a lack of dishonesty, is a base standard which society requires everyone to meet. Professional standards, however, rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work. There is a real difference between them.” 

Conclusions

In my view the court couldn’t have been clearer; Malins should not be followed. The traditional approach in relation to honesty and integrity has been restored; the cul-de-sac has had a barrier placed firmly across its entrance.

What a difference a fortnight makes.

Richard Shepherd

Practice Areas: 
Employment