Inappropriate emails - ICAEW case provides helpful guidance on the threshold for discreditable behaviour

In a recent case, a member of the ICAEW (Mr F) was excluded from membership for sending numerous emails between 2015 and 2018 which were found to be contrary to the requirements of the ICAEW’s Code of Ethics in relation to professional behaviour.
 

Section 150.1 of the ICAEW’s Code of Ethics in force at the time states:

‘The principle of professional behaviour imposes an obligation on all professional accountants to comply with relevant laws and regulations and avoid any action that the professional accountant knows or should know may discredit the profession. This includes actions that a reasonable and informed third party, weighing all the specific facts and circumstances available to the professional accountant at that time, would be likely to conclude adversely affects the good reputation of the profession.’ (Our emphasis.)

The Tribunal considered each of the emails separately, and its findings provide some useful guidance on those emails which might be considered to discredit the profession in terms of their language and tone.

The context

In this case, Mr F owned a property within a development.  Ms B and Mr A (both chartered surveyors) held positions at firms involved in the management of the development.  Between 2015 and 2018 Mr F sent emails to Mr A and Ms B and others expressing his views and making comments relating to the management of the development.  These emails were therefore not sent in the context of a professional engagement or a professional setting.  However, the duty not to act in a way which may discredit the profession applies to accountants in their private life as well as their professional life. 

In correspondence with ICAEW, Mr F said he considered that his comments were justified, appropriate and proportionate in response to the complainants’ actions.  He claimed that the complainants were the aggressors and he was seeking to defend a friend against what he considered to be unscrupulous and unethical actions to destroy her and her business.

In considering whether the comments in each email brought discredit on the profession, the Tribunal bore in mind that the dictionary definition of discreditable is “shameful or disgraceful”. 

Emails which breached the Code of Ethics

The Tribunal considered emails in which Mr F referred to an individual as “the scum of the earth”, and found that the use of this phrase was completely unacceptable and amounted to discreditable conduct.

The Tribunal also considered the tone and intention of the emails, even where the words themselves may not have been inappropriate.  For example, the Tribunal found that comments including “Dear, oh dear Ms ‘D’, haven’t you got anything better to do like washing up?” and “…I think you were a lucky, lucky girl” used sexist, belittling and unprofessional language.

Similarly, the use of sexist language such as “you stupid girl” and “knickers in a twist” was found by the Panel to be a breach of the Code of Ethics, when included in an email in which the overall tone was found to be aggressive and offensive. 

The Panel considered the wording: “the same mickey mouse Accountancy School as Ms ‘D’” and “if this was Mr ‘A’s idiotic idea you are even more of a fool to listen to him” was inappropriate and unprofessional irrespective of whether there was any merit to the underlying dispute.

The Tribunal also took into account the timing of certain emails.  For example, Mr F sent an email in which he said “Happy birthday Mr ‘J’, you old git, I hope you have a rotten day”, “you are a dead man walking” and “You are an embarrassment to your profession and a total disgrace”, at two minutes past midnight. The Tribunal found that the objective of this email was to cause maximum distress and annoyance, which was clearly inappropriate behaviour for an accountant to engage in.

Email which did not cross the threshold

The Tribunal considered an email with the words “The Directors and Firm ‘P’ will have had 3 weeks to organise the General Meeting so they have no excuses apart from their negligence and/or incompetence” did not reach the threshold for discreditable behaviour. The Panel noted that negligence and incompetence do arise at times, and that it can be appropriate to raise these concerns. 

In considering the appropriate sanction, the Tribunal referred to a number of aggravating factors, including:

• “The comments included language which was sexist i.e. discriminatory, grossly offensive and was of a threatening nature, which caused offence and hurt to a number of people. In one instance, a recipient was so concerned by the contents (which suggested the Police would be arresting her), and by the email being hand delivered by post to her home address, that she contacted the Police;
• The conduct continued over a significant period of time and offensive comments were made repeatedly I.e. there was a persistent pattern of unprofessional conduct.
• Mr F made direct reference to his professional status.
• Mr F wrote a disparaging email addressed to the ICAEW about one recipient and sent it to her in a clear attempt to intimidate her.”

The Tribunal concluded that “in light in particular of the prolonged pattern of egregious conduct, discriminatory comments, his lack of insight and the risk of repetition, Mr F’s conduct was incompatible with his continued membership of a professional body”.

Conclusion

The Panel accepted that the comments in Mr F’s emails were made against the background of a fraught dispute, but did not consider it necessary to assess the merits of this.  This serves as a reminder that, even if you have a legitimate cause for complaint, as an ICAEW member you must not express your views in a way which would bring discredit on your profession.  That is not to say that you cannot express your views or call out wrongful behaviour.  Indeed, the Panel determined that an email which referred to alleged negligence and incompetence of specific individuals did not cross the threshold of seriousness and acknowledged that it can be appropriate to raise such concerns.  However, this case makes it clear that even legitimate concerns should not be expressed in a way which is offensive or threatening, and the tone and even timing of emails will be relevant in this regard. 

The Panel’s finding that Mr F had demonstrated a complete lack of insight or remorse was considered to be an aggravating factor.  If you are the subject of a complaint to the ICAEW in relation to allegedly discreditable behaviour, it is important to engage with the process and provide any relevant contextual information and mitigation.  Our specialist team would be happy to provide you with advice and assistance if you are the subject of an investigation by the ICAEW.

Further Information

If you have any questions or concerns about the topics raised in this blog, please contact Lucy Williams, Julie Matheson, or any member of the Regulatory team.

About the Authors

Lucy Williams is Legal Director in the Regulatory Department with a particular specialism in legal, healthcare and financial regulation. In her defence practice Lucy represents regulated professionals and organisations facing professional disciplinary proceedings, including law firms, solicitors, barristers, doctors, nurses, psychotherapists and teachers.

Julie Matheson is a partner in the Regulatory Team. Her expertise lies in advising professionals and professional services firms, particularly in the accountancy, audit and built environment sectors, on regulatory compliance, investigations and enforcement proceedings.