Trade promoter with 20 years' service unfairly dismissed but denied compensation over secret commission
The tribunal found the dismissal was procedurally unfair, but refused to award any compensation because after-dismissed evidence showed the employee had sought a secret commission from a customer.
1 min read · Last updated 19 May 2026
Case details
- #long-service
- #summary-dismissal
- #after-discovered-misconduct
- #duty-of-fidelity
- #secret-commission
- #procedural-unfairness
Key facts
- The claimant was employed as a Trade Promoter from 4 April 2002 until summary dismissal on 15 July 2022.
- The respondent dismissed the claimant for customer complaints, breakdown in working relations, and performance issues.
- The tribunal found the dismissal was procedurally and substantively unfair, with no live warnings in place.
- After dismissal, it was discovered the claimant had sought a secret commission from a customer and made derogatory comments about the respondent.
- The tribunal declined to award any compensation due to the after-discovered misconduct under Devis v Atkins.
- The race discrimination claim was dismissed for lack of evidence.
Timeline
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Employment started
Claimant began working for the respondent as a Trade Promoter.
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First written warning for attendance
Claimant received a first formal written warning for poor attendance and timekeeping.
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Final written warning for attendance
Claimant received a final written warning for poor attendance and timekeeping.
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Official warning letter for performance
Claimant received an official warning letter for missing a deadline.
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First written warning for timekeeping
Claimant received a further first formal written warning for poor timekeeping.
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Secret commission attempt
Claimant emailed Endovision to negotiate a personal commission, using work email.
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Mr Choi's email to Crucialtrak
Mr Choi expressed regret about claimant's service and suggested a Korean replacement.
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Investigation meeting invitation
Claimant invited to investigation meeting regarding customer complaints, breakdown in relations, and performance.
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Investigation meeting
Investigation meeting held, chaired by Ms Chang.
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Disciplinary hearing
Disciplinary hearing held, chaired by Mr Jun.
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Summary dismissal
Claimant summarily dismissed with pay in lieu of notice.
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Appeal meeting
Appeal meeting with external HR consultant Mr Butt.
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Tribunal judgment
Tribunal upheld unfair dismissal claim but dismissed race discrimination claim and awarded no compensation.
The legal issue
The tribunal had to decide whether the dismissal was unfair and, if so, whether compensation should be reduced or denied because of misconduct discovered after the dismissal.
The outcome
The tribunal upheld the claim of unfair dismissal, finding that the employer's process was flawed: there were no live warnings, the investigation was inadequate, and the decision to dismiss fell outside the range of reasonable responses.
However, the tribunal applied the principle from W. Devis & Sons Ltd v Atkins and refused to award any compensation. After the dismissal, the employer discovered that the employee had used his work email to negotiate a personal commission from a customer—a clear breach of the duty of fidelity.
- Basic award: £0 (discretion exercised under s.122(2))
- Compensatory award: £0 (after-discovered misconduct made it unjust to award compensation)
- The race discrimination claim was dismissed for lack of evidence.
Lessons & takeaways
- Employers should ensure disciplinary processes are thorough and based on current warnings—relying on stale warnings can make a dismissal unfair.
- After-discovered misconduct can be used to reduce or eliminate compensation, even if the dismissal itself was procedurally unfair.
- Seeking a secret commission from a customer is a serious breach of the duty of fidelity and can justify denying any remedy.
- Length of service does not automatically protect an employee from the consequences of serious misconduct discovered after dismissal.
A flawed process, but no compensation
This case illustrates a stark reality for employees: even if a dismissal is procedurally unfair, serious misconduct discovered after the event can wipe out any compensation. The trade promoter, who had worked for the Korea Trade Investment Promotion Agency for 20 years, was summarily dismissed in July 2022 following customer complaints and performance concerns. The tribunal found the process was flawed—there were no live warnings, and the employer did not follow a fair procedure. On that basis, the dismissal was unfair.
What the employer could have done differently
The employer could have avoided a finding of unfairness by conducting a proper investigation and ensuring that any warnings relied upon were still current. The tribunal noted that the employee's earlier warnings had expired, and the decision to dismiss was too hasty. A more thorough process, including considering updated performance evidence, might have put the dismissal within the range of reasonable responses.
The sting in the tail: after-discovered misconduct
After the dismissal, the employer discovered that the employee had used his work email to negotiate a secret commission from a customer, Endovision. This was a clear breach of the duty of fidelity. Under the principle in W. Devis & Sons Ltd v Atkins, a tribunal can refuse to award compensation if it would be unjust to do so in light of misconduct that only came to light after the dismissal. The tribunal exercised that discretion here, awarding nothing.
Why this matters for similar claims
This case is a reminder that a finding of unfair dismissal does not guarantee a payout. Employees who have engaged in serious misconduct—even if it is discovered later—may find themselves with a pyrrhic victory. For employers, it shows that a flawed process can still lead to a finding of unfairness, but that after-discovered evidence can provide a powerful defence against compensation.
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