Informatica UKI veep was rightfully sacked over Highways England $5k golf jolly, says tribunal
- Reference: 1634813781
- News link: https://www.theregister.co.uk/2021/10/21/informatica_vp_sacked_golf_trip_employment_tribunal/
- Source link:
Not only did Derek Thompson breach Informatica's anti-corruption policies but he also warned underlings to "be discreet" about the jolly – and told HR investigators "Why does anyone do any customer entertainment?" when asked how playing golf benefited the business.
Thompson lost his appeal against a judge's [1]earlier ruling [PDF] that his October 2017 sacking was reasonable, with the Employment Appeal Tribunal [2]publishing its judgment [PDF] last week.
[3]
Highways England's executive IT director Tony Malone was invited to speak at an Informatica conference in 2017. Highways England had signed a $4.8m contract with the US software development firm the previous year. Keen to impress the customer, Informatica salesman Colin Grey suggested he accompany Malone to California's Pebble Beach Golf Club so Malone could tick it off his "bucket list".
[4]
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Thompson cleared the jolly with senior EMEA veep Steve Murphy – but didn't check back in with Murphy when the likely cost of the overnight stay became clear before the conference, reasoning that the "cat was out of the bag" and the company couldn't retract its invite to the Highways England manager.
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Informatica spent $5,400 on a one-night stay for Malone at the club, including dinner, green fees and a private hotel transfer on top of costing around $2,000, with Employment Judge Vowles noting in his 2020 ruling: "The Pebble Beach Golf Club is a very expensive venue, and widely known to be so, being one of the top golf clubs in the US."
Internal auditors at Informatica immediately flagged up the transaction and bosses hauled Thompson in for various grillings that culminated in a disciplinary hearing where he was sacked, in October 2017.
Informatica's anti-bribery policy, which Thompson had signed to indicate he had read, mentioned both the US Foreign Corrupt Practices Act and the UK's Bribery Act 2010. Both laws prohibit trying to bribe or influence government personnel.
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Mr Justice Cavanagh, giving the Employment Appeal Tribunal's judgment, ruled that Thompson had broken the US section of the policy. Malone was not American and therefore was a foreign official for the purposes of the US-headquartered company – regardless of Thompson being a Briton employed in Britain for a British subsidiary and entertaining a British government official. He didn't even go on the golf trip himself.
Thompson's main four grounds of appeal were all dismissed by Mr Justice Cavanagh. They included that Employment Judge Vowles, who originally ruled against Thompson, had made a finding of gross misconduct that was "perverse"; that the judge had got it wrong when he found Thompson had "wilful disregard" for Informatica's anti-corruption policy; that it was an error in law to reject the principle that Thompson should have been told the case he had to meet when facing disciplinary proceedings that could result in dismissal; and, finally, that the ruling had misinterpreted the Anti-Corruption Policy.
Thompson also contended that the judge hadn't been clear enough explaining his initial ruling.
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"Expenditure could be a 'prohibited payment' even if there was no intention to provide a bribe or corrupt payment," concluded Mr Justice Cavanagh. ®
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[1] https://assets.publishing.service.gov.uk/media/5e57cdddd3bf7f06fb54a768/Mr_D_Thompson_-v-_Informatica_Software_Limited_-_3300059-2018-_Reserved.pdf
[2] https://assets.publishing.service.gov.uk/media/6166b32c8fa8f5297a62a128/Mr_D_Thompson_v_Informatica_Software_Ltd_EA-2020-000463-OO__Previously_UKEAT0231_20_OO_.pdf
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YXGOwZ2sx0mhTLQV0xM88AAAABU&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YXGOwZ2sx0mhTLQV0xM88AAAABU&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YXGOwZ2sx0mhTLQV0xM88AAAABU&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[6] https://www.theregister.com/2021/07/14/informatica_cloud_data_governance_catalog/
[7] https://www.theregister.com/2021/09/10/employment_tribunal_wipro_northgate_highland_council/
[8] https://www.theregister.com/2021/09/23/ibm_shamayun_miah_court_cases/
[9] https://www.theregister.com/2021/06/28/serco_track_trace_claim_tribunal/
[10] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YXGOwZ2sx0mhTLQV0xM88AAAABU&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[11] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YXGOwZ2sx0mhTLQV0xM88AAAABU&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[12] https://whitepapers.theregister.com/
After Dinner Speech circuit...
This sounds suspiciously similar to the after dinner speech circuit ex-politicians like Blair and Clinton were so prolifically involved in. Situations where it's difficult to put a remuneration value on what someone should earn for a speech, and why a particular company wants to offer excessive remuneration+expenses for, what are bland speeches by a particular person/ex-politician in the first place.
I've always thought (in general) there was much more to these sort of events than meets the eye. i.e. they have the potential to be a form of bribery years after 'the favour' has been made, (Gulf War? Bosnia?) but clearly if it is, then that is what is so clever about organizing these types of headline after dinner speech events paying what appears, to the layman, excessive remuneration for the time and effort involved, it's the perfect cover.
Google is your friend. A quick online search indicates he continued in post.
Maybe this is the new way of doing things: Offer the junket, let the person make their speech, and enjoy the fruits (expensive golf trip/hotel), then scapegoat a dispensable individual after the fact, to make it look all above board, make it look like the company is proactive against any sort of bribery allegations.
But the bottom line here, the junket still took place and the IT Director still got his freebie. In some ways, it would be worth it to Informatica doing it this way, considering the size of the contract.
The Highway Agency's IT director managed to tick off his golfing bucket list, and he is still employed by Highways Agency. He can still sign off contracts with Informatica. i.e. the HA IT Director has still been indirectly remunerated for the speech.
It looks, for all intents and purposes - above board, vetted and disciplinary action taken against Informatica employee(s). Job done.
Nothing is straightforward nowadays. The IT Director should have been made to pay for the trip out of his own pocket, after the fact, and should be prevented from signing off Informatica contracts going forward. Even then, that doesn't really satisfy things. He should have never taken the trip on those terms.
But with no foreigners anymore there are vast (but limited) career opportunities for home grown scapegoats
What about the Highways England's IT director?
I've been through training relating to the UK's Bribery Act 2010, and it specifies that its an offence to knowingly make or receive a bribe (whether money, goods or services - the latter being the case here) in the UK or anywhere else in the world. Hence I am wondering whether Highways England's IT director has also been hauled in front of the beaks accused of breaking the act.
Re: What about the Highways England's IT director?
I don't see anywhere where it is clear that the junket was a bribe. i.e. that signing the contract was condition on receipt of the gift. It's always been a problem with such legislation to clearly define when something is a bribe.
However when I was in the public sector the policy was that any offered gift over a certain value had to go through auditors for approval. If the auditors told you to reject it then you rejected it. The auditors may also accept the gift on behalf of the organisation and choose to donate it elsewhere - for example to a charity or possibly as a raffle prize or similar. If you had already received an unsolicited gift then the same rules applied, but obviously refusing the gift in this case was almost impossible.
I don't recall the actual limit on value but it certainly wasn't much as there was one case where some of us returned from a supplier meeting with mugs, beer mats and biros and we were told they had to be declared. The upshot of that was that audit decided we could keep the gifts, but only for work use. Seriously.
Before the job was given to auditors the role was carried out by senior management. That contunued up until there were rumours that senior management were accepting the most peachy gifts on behalf of the organisation and keeping them. Nothing was ever proceed naturally.
I've always thought it would just be easier to ban gifts altogether.
Re: What about the Highways England's IT director?
"I don't see anywhere where it is clear that the junket was a bribe. i.e. that signing the contract was condition on receipt of the gift. It's always been a problem with such legislation to clearly define when something is a bribe."
UK anti-bribery legislation is very strict. In particular it's not required that there be a direct quid pro quo for a gift to be considered corrupt. It's enough that a lavish gift was given to an official who could decide any future contracts. So there is no problem with the clarity of the legislation. The guy could certainly be charged of corrupt behaviour under UK law.
"obviously refusing the gift in this case was almost impossible."
why? "Oh I couldn't possibly accept" is bout as British an answer as there is.
Re: What about the Highways England's IT director?
"...it specifies that its an offence to knowingly make or receive a bribe..."
UK bribery law is relatively narrowly defined, requiring promise of exchange of financial or other advantage for improper exercise of authority or function, and vice versa. As the junket was apparently offered without promise of reciprocation and offered after the deal was done, it probably doesn't pass the threshold for bribery in the UK.
However it would have definitely fallen under the Highways England gifts policy, which invariably will prohibit acceptance of gifts of an extravagant or unusual nature. Given the INFA VP didn't even go golfing with the official being definitely-not-bribed, there's no rational justification as a business or networking meeting. It's hard to understand how this didn't result in the official and their boss getting the sack.
Also smells like an excuse to terminate. It's usual to throw the lowest ranked under the bus, yet the sales person went on the trip and their boss got fired.
The salesman was fired as well.
Yes - it must have been just awful for Informatica: having to sack those people knowing that they wouldn't have to pay the bonuses.
Gift value
In the Local Authority I worked in until recently the value was £20, anything above that had to be reported and was very rarely allowed.
Re: Gift value
When I was tech support manager in a council we had a cupboard full of 'gifts' received by default from suppliers when making a volume purchases, games attached to graphics cards, Cd's, event tickets (we had to keep them to prove they were never used). At that point we were not even allwed to uise things like mice if we hadn't procured them so there were a nice couple of trackballs gathering dust. We even digital camera's. we couldn't use them, couldn't sell them, couldn't even put them in a charity raffle. I also had no way to dispose of them.
This was the same organisation that gave on call technical managers mobile phones then refused to pay an ex-gracia payment to cover the tax increase when Nigel Lawson declared a mobile phone as a benefit in kind.
The thought of being taxed for being on call 24/7 when we weren't even paid for it was a final straw and my colleagues and I all returned our phones making a very nice pyramid on the desk of the senior manager who was responsible for the jack ass decision
Re: Gift value
I'm currently contracting for a company whose primary line of business is regulated by Ofgem. Here it is similar to yours. No cash or voucher-like things at all. And anything including and above the size or value of a bottle of wine has to be formally declared and approved by internal audit.
Contrary to this, my Ltd co. will happily accept anything. Please... please... anything at all ;-)
What about the Highways England person accepting the junket?