Honesty and/or Integrity – a distinction without a difference?

The Issue

Whether in a pure employment law context or whether looking at professional disciplinary proceedings, a breach of the standards of, or obligations of, honesty and integrity will usually be fatal to the employment or professional relationship.

There is a strong line of case law that indicates that a finding of a breach of honesty, in particular, and to some extent integrity, in a professional disciplinary context, will almost always result in the worker leaving their post, and in an employment context, the same being used to demonstrate a fundamental breakdown of the relationship of trust and confidence.

Therefore, it is with some surprise that these two terms, ‘honesty’ and ‘integrity’ are often lumped together, without much thought as to why both are needed. As the length of the list of relevant cases below indicates, this isn’t a straight forward matter. However, there is not space within this e-bulletin to undertake a complete analysis of the history of the terms ‘honesty’ and ‘integrity’, however, this writer can recommend the excellent blog of a professional colleague, Elliot Gold, who recently undertook such an analysis.

This e-bulletin will focus on 2017 and how the recent crop of cases has alternately muddied or clarified this important issue.

Relevant Cases

• Bolton v Law Society [1993] EWCA Civ 32
• Hoodless and Blackwell v FSA [2003] UKFTT FSM007
• Iqbal v Solicitors Regulation Authority [2012] EWHC 3251
• Solicitors Regulation Authority v Chan [2015] EWHC 2659 (Admin)
• Scott v Solicitors Regulation Authority [2016] EWHC 1256
• Solicitors Regulation Authority v Wingate and Evans [2016] EWHC 3455
• Newell-Austin v Solicitors Regulatory Authority [2017] EWHC 411
• Bar Standards Board v Howd [2017] EWHC 210
• Malins v Solicitors Regulatory Authority [2017] EWHC 835 (Admin)
• Thames Valley Police v (1) Police Misconduct Panel (2) White [2017] EWHC 923 (Admin).

Recent Case Law

The traditional distinction between the terms was most neatly encapsulated in the case of Iqbal where the court stated that:

“While all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty. The law requires a subjective element to any finding or conclusion of dishonesty, but the question whether a person lacked integrity is objective.”

That is our starting point.

However, in the recent case of Malins, a case regarding a solicitor, the court adopted a surprising stance. It stated:

“In my judgment… the legal and dictionary definitions of the words honesty and integrity are aligned and that they are synonyms… Want of integrity and dishonesty are not only the same thing but must be proved to the same standard…”.

This caused a number of commentators to raise their eyebrows. The judgment seemed to do away with the past 20 years of case law on this topic and to do so based upon a relatively slim judgment of just 13 pages.

Now, it should be noted that the professional standards of solicitors are drafted in a slightly different way to other professions and the case of Malins had a relatively peculiar set of facts.  Nevertheless, the manner in which the judgment was phrased was rather stark.

However, hot on the heels of Malin, came the decision of Thames Valley Police which appears to have reverted to the status quo. The court viewed the situation as follows:

“… A lapse of integrity is very serious but can fall short of the quality of a lapse of honesty. Integrity in this context is not used in the sense of freedom from moral corruption rather in the sense of a failing to act in the right way, not behaving as the totally correct police officer would, in some way falling short of the whole. It is explained for police officers as “doing the right thing.

… Accordingly, it follows that not every failure to act with integrity is inevitably so serious as to be gross.”

Therefore, by highlighting that integrity can ‘fall short’ of honesty, the court is recognising a real distinction between the two.

Conclusions

When the judgment in Malins splashed down it caused more than simple ripples across the professional disciplinary pond. It caused many of us to reassess cases currently in train and how we were going to amend the tenor of our advice about future cases.

It would appear that we were a little premature. Malins is an interesting case, it raised interesting and difficult questions for the court but after Thames Valley Police it is likely that Malins will be viewed as a disciplinary cul-de-sac.

As you were.

Richard Shepherd