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Dealing with proven serious contract breaches: guidance
for Contracts Advisors and Appeals Managers.
Background.
From time to time contracts advisors and appeals managers will be required to give
consideration to what would be an appropriate outcome where an agent is found to
be culpable of a serious breach of contract. Typically but not exclusively these
breaches will be in the form of false accounting and / or mis-use of Post Office®
funds.
These notes are designed to provide advice to decision makers who find themselves
in this position.
Guidance notes.
In cases where guilt has been proven on the basis of ‘balance of all probabilities’, it
will be necessary to determine what action is necessary. For serious contractual
breaches, it is necessary to deal with the matter robustly, not least because;
We have allowed the agent to use our cash and stock, free of any charge, and
have made it clear what they can and cannot do with that
- Failure to do so will have an adverse impact on our brand
- The agent operates in a position where a considerable amount of trust has
been vested in them, and
It is necessary for the action we take to have a strong deterrent effect in
others.
On considering an appropriate outcome,there are at least two options open to the
decision maker; summary termination of contract, and final written warning. In
some cases, the outcome may be less serious than either of these two options.
In each case, there may be a number of mitigating and aggravating circumstances
present, and it is incumbent on the decision maker to factor all of these in when
deciding on an appropriate outcome, and to explain how they had done so. It is also
incumbent upon the decision maker to explain in detail in their judgement notes
why they had discounted one (or a number of) particular outcomes in favour of
another.
To assist you in this, I have included here a table showing examples of what you
would reasonably be expected to factor into your decision making; these examples
are not exhaustive of course.
Aggravating factors
Mitigating factors
The agent had, or had tried to cover
up the offence at the time.
The agent was acting under some
form of duress, or threat.
The agent had blamed someone else
for the offence.
The agent has accepted full personal
responsibility for the offence.
The agent has not admitted the
offence from the outset.
The agent has admitted the offence
from the outset.
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The agent has not re-paid any The agent has re-paid any monies
monies taken taken. I
The agent has not apologised for the I The agent has shown genuine I
offence. temorse for the offence.
The agent has not indicated how The agent has been able to say how
further failures will be avoided. further offending will be avoided.
Where POL funds had been mis-used, I There is evidence that the agent was
the offence was unnecessary as the I taking medication, or was suffering
agent had sufficient other personal _I from some disorder that would have
resource to avoid the offence. affected their judgement and
decision making.
The agent's record shows that they I The agent's behaviour was out of
have a disregard for rules, or that character compared to their track
their general performance is poor. record generally.
You will see that it is not always possible to easily apply a weighting to these
examples, nor is it appropriate to simply apply a scoring system here — what weight I
you finally apply to each factor is a matter for your own judgement. That said, to I
help you reach a fair conclusion, you should consider the following factors when
considering the aggravating and mitigating factors:
Cases where the agent had taken a sum well in excess of their ability to repay
at the next payday would carry a heavier weighting, as that moves the
offence (in criminal terms) away from mis-use of funds and more towards
theft.
- Factors that occured at a time before the offence had been discovered would
carry more weight
- Where the offender had been caught ‘Red Handed’, any mitigating factors
would carry less weight
Criminal cases.
These guidance notes only deal with the civil i.e. contractual aspect of the case.
Whilst this matter is dealt with separately from any criminal proceedings,
consideration should be given to that aspect, as it would not be desirable to re-
instate an agent with a final warning where there was a likelihood that a criminal
conviction would follow.
Further advice.
Further guidance in this matter can be obtained in the first instance from the
National Contracts Managers, and then from the author of this guidance note. I
Paul Inwood I
Agents Contracts and Policy Manager