Mr J Banerjee v Royal Bank of Canada: 2200415/2017

EMPLOYMENT TRIBUNALS

Case No 2200415/2017

Between

Mr J BanerjeeClaimant

Royal Bank of CanadaRespondent

Before

Employment Judge Goodman

Date 23 September 2021

REASONS

Analysis

[1]At a hearing on 14 September 2017, the tribunal ordered that the final hearing due to start of October 2017 was postponed, and relisted 23 April 2018 with a 13 day time estimate. The claimant has now applied for the costs of the postponement.

Evidence

[2]The application was made on these grounds:2.1.1 under rule 76 (2): “the tribunal may also make such an order where party has been in breach of any order or practice direction or whether hearing has been postponed adjourned on the application of the party”. The claimant applies in respect of each limb of that subsection, that is both breach of order and postponement on application;

2.1.2 under rule 76 (1) “the tribunal may make a costs order preparation time order, and shall consider whether to do so, where it considers that ..a party has acted vexatiously, abusively disruptively or otherwise unreasonably in …the way the proceedings have been conducted.

[3]The claimant had not instructed solicitors. Counsel is instructed under the direct access scheme. It was clarified that this is an application for costs, not preparation time. Factual Summary

[4]This summary is taken from the two volume bundle of orders and correspondence available for this hearing.

[5]The claim was started in March 2017. The tribunal then listed an eightday final hearing starting 10 October, and gave directions which included sending each other documents by 12 July 2017.

[6]There was a preliminary hearing for case management on 21 June. The disclosure order was varied so that parties had to disclose by both copy and list by 21 July and, in the words of the order: “the parties shall comply with the disclosure given above, but if despite their best attempts, other documents come to light (or are created) after that date, the documents shall be disclosed as soon as practicable in accordance with the duty of continuing disclosure” (para 2.4).

[7]At the same time orders were made for final hearing bundle by 4 August, and exchange of witness statements by 12 September.

[8]The parties agreed to extend the deadline from 21 to 25 of July because the claimant has suffered a bereavement.

[9]On 25 July the claimant sent three lever arch files of documents and the respondent sent about 11 files. The respondent said: “our client is continuing its searches for discoverable documents. We anticipate that will be providing additional disclosure shortly in accordance with the respondents continuing disclosure obligations as referred to at paragraph 2.4 of the tribunal’s orders of 21 June 2017”.

[10]On 4 August 2017 the respondent delivered a further 11 files of documents to the claimant.

[11]On 12 August 2017 the respondent sent another 2 lever arch files of documents.

[12]By this stage each batch of documents had been delivered with its own index. There was no consolidated index. The documents were not paginated to any index The claimant complains that as a result documents from the same date were scattered across three, which increased the magnitude of the task of reading them.

[13]On 17 August 2017 the claimant applied to the tribunal for a postponement of hearing. He complained that because he did not have all the documents until 12 August, and then in a form which made a lot of extra work, still with no final hearing bundle, he was now having to do a lot of last minute work on the documents, had not even finished reading them, and would be in difficulty preparing a witness statement on time. He said the parties were not on an equal footing because the respondents would have known about the contents of the documents long before he did.

[14]While this was going on the claimant was also seeking specific disclosure of documents he thought were missing. On getting the third batch he told the respondent he would tell them by 29 August what should go in the hearing bundle, but he was not ready to do this when the respondent sent him a trial bundle on 1 September. As the claimant then pointed out, on 7 September, the respondent had only included a small number of the claimant’s documents, and most had been omitted. On realising what had happened, the respondent agreed to support the postponement application, and wrote accordingly to the Tribunal on 8 September. The letter lists a number of matters outstanding to be decided, but made no mention of late disclosure as the reason why the parties were not ready.

[15]At a hearing listed for 30 minutes on 14 September, the case was three weeks from the start of the hearing, and the hearing bundle, then 23 lever arches from the respondent, and a potential three from the claimant, had yet to be weeded for duplication and the final content agreed. The final hearing was postponed, on the basis that it was unrealistic to expect a litigant in person without solicitors and paralegal staff to do this and prepare his own witness statement in time. It was relisted with a larger time estimate, with a view to adding consideration of Polkey and contribution to the issues to be decided then. Submissions

[16]The claimant argues that the need to postpone the hearing arises solely from the respondent’s knowing failure to comply with the order to disclose documents on time. Although complying in the letter by disclosing documents on 25th of July, they did not do so in spirit because they were still looking, so this was not in fact a case of documents coming to light which have been overlooked, but respondent knowing that they have not completed the search. The claimant did not in fact get full disclosure until 12 August. On that basis he made his application to postpone. The respondent made it worse by preparing a hearing bundle which did not include any but a few of the claimant’s own documents, and it was their realisation that had occurred that made them consent to postponement, though still without admitting to the tribunal that their own delay and error was largely responsible.

[17]The respondent argues that costs are the exception, not the rule, and an award of costs following postponement is discretionary and compensatory; the claimant had applied for postponement well before the omission of his documents from the hearing bundle, and himself disclosed nine emails relating to mitigation after 25th of July.

[18]The claimant replied that any documents disclosed after 25 July had come into being after that date.

Discussion

[19]Rule 76 sets out the grounds on which the tribunal may make a costs order. Rule 76 1 (a) is that the proceedings are being conducted “otherwise unreasonably”. Rule 76(2) also provides that such an order may be made where parties been in breach of order, or a hearing postponed, without requiring this conduct be unreasonable. Both provide that tribunal “may” make an order meaning that it is an exercise of discretion, with regard to the overriding objective to deal with cases fairly and justly, including so far as practicable, ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding delay, saving expense. (Rule 2)

[20]Examining rule 76 (2) first, I find that the respondent was in breach of the order to give disclosure by 25 July 2017 (the date of the agreed extension). It is clear from the letter from the respondent of that date that the respondent knew that disclosure was in no way complete.

[21]The respondent relied in their letter on the wording of the Tribunal order providing for continuing disclosure. The wording of the tribunal order for disclosure was in standard form, and is designed to inform unrepresented parties, or representatives unfamiliar with the civil procedure rules, that the duty to disclose documents continues even after substantial compliance. I find it hard to believe that the respondent, represented by very experienced litigators, did not know this when it wrote that letter. In terms of volume, if not in numbered items, there was at least as much to come as had already been disclosed.

[22]This put the unrepresented claimant at a substantial disadvantage. Unlike firms of solicitors he did not have experienced paralegals to sort material, and while litigants in person do not always appreciate how much time they need to set aside to deal with disclosure, this claimant was faced with the added difficulty of documents for similar dates being placed in three separate bundles, none of the bundles they paginated, so he would need to resort them all to make sense of it. He could not ask counsel to do this work.

[23]It was at this point that he made his application to postpone. The application was not referred to an employment judge at the time, but it is by no means clear to me that postponement would have been granted at that stage. Tribunals are familiar with last-minute pressures on and anxieties of the parties, and with the need on the Tribunal’s part to hold the line with listings for multi-day cases which may otherwise not get another hearing until six months later. It is more likely at that stage that respondent would have been ordered to sort the documents into a proper trial bundle by an early date, so the parties could focus on preparation of witness statements. Although it might not have been possible to meet the exchange date envisaged (11 September) there was still room for slippage before the hearing began 10th of October.

[24]As respondent’s solicitors themselves recognized when pointed out to them by the claimant on 7 September, it was the failure to sort (for duplication) and include the claimant’s documents in the hearing bundle that led them to agree to the postponement, and the tribunal to accede to the request, given that the bundle was still not in usable form.

[25]For those reasons I hold that the respondent was responsible for the need to postpone the hearing. Discretion has to be exercised as to whether a costs order is appropriate even if the responsibility was theirs. Unforeseen factors may often dog preparation for hearings, not all delay leads to a postponement and not every breach sounds in costs. Relevant factors are that the respondent knew from the pleaded case that there were a number of different protected disclosures, and many people involved. It would be a document heavy case. They knew from directions made 3 May that they would have to finalise disclosure by mid-July. It is not known why respondent was not able to complete the search until midAugust, but lack of resources on the part of the respondent of the solicitors does not seem to be a difficulty, and no explanation has been given.

[26]Another factor relevant to the exercise of discretion is that while the respondent’s representatives were well resourced, the claimant, who acted in person, was on his own, and on the face of it needed more time to read and sort what he received. The respondent’s lack of consideration for the claimant was aggravated by their failure to keep him informed so that he could plan when to do the work. It would have been possible to indicate how much was likely to come. The respondent should have told the claimant that they would not be able to meet the deadline and negotiate an extension, and that would not stop them disclosing material ahead of the deadline if that would ease the burden. The claimant’s anxieties about what was missing, reflected in his requests for specific disclosure of texts and messages, not included in the first batch, would have been allayed. All these were compounded by failure to include the claimant’s documents in the hearing bundle, which if the hearing were not postponed would lead to him spending much extra time and effort preparing a supplementary bundle. The tribunal does not say that inequality of resources should always mean that claimants get more time and latitude in preparing disclosure, and many claimants fail to understand the time they must spend and the hard work they will have to do sorting disclosed documents, but these experienced and well-resourced solicitors did not comply with the order, have not explained why they did not comply with the order, and did not involve the claimant in agreed adjustments to the timetable, so causing him additional anxiety, to the point where he instructed another body to sort material for him, at some expense. This was contrary to the overriding objective which also provides: “the parties and their representatives shall assist the tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the tribunal”.

[27]For these reasons, this is a case appropriate to exercise discretion and make an order that the respondent pay the claimant’s costs of the postponement which resulted from the breach of the order.

[28]Having made that order I do not consider necessary to consider whether the respondent acted “unreasonably”, although their conduct in failing to cooperate with the claimant about slippage in the timetable, which given the volume of documents involved, had a very substantial impact on the other party, is likely to have amounted to unreasonable conduct.

[29]As to the amount of costs, the claimant sought the following (claims for photocopying were withdrawn before the hearing):23.1 £,8625 paid to Whistleblowers UK to sort the documents into chronological order, at £150 per hour, invoice dated 1 September 2017

23.2 payment to junior counsel for correspondence arising out of disclosure – £1,208.33 plus VAT

23.3 payment to junior counsel advising and drafting application to adjourn 17 August £1,750 plus VAT

23.4 first tranche of junior counsel’s brief fee incurred 11 September – £5,000 plus VAT.

[30]No material was before the tribunal as to the cost of today’s hearing, which dealt both with specific disclosure and the costs application.

[31]Before the costs application was heard I raised with the parties that I was concerned to establish whether the invoice from Whistleblowers UK covered regulated services as listed in regulation 4 of the Compensation (Regulated Claims Management Services) Order 2006, made under the Compensation Act 2006, which created offences, as if so, it did not appear at first sight that Whistleblowers UK, a company limited by guarantee, was registered as a charity or was a regulated claims manager, and it might be necessary to consider their status when deciding whether it was lawful or contrary to public policy to order payment of their costs. The claimant had not taken this point, but had argued that the invoice was not for legal services but represented preparation time, and the claimant could not claim both that and costs.

[32]In the course of the hearing, without further discussion, the claimant withdrew the claim for the Whistleblowers UK invoice. This left the claims for junior counsel’s fees.

[33]Counsel’s fee notes were not available, though junior counsel was present at the hearing. Mr Glyn stated he had seen the fee notes, further, that the claimant had paid them.

[34]The payment for the application to adjourn is causatively related to the respondent’s conduct leading to the postponement and recoverable. So is the payment of the first tranche for the hearing, which was to reserve those dates in her diary, and cannot be recouped in preparation work for the relisted hearing. The payment for correspondence arising from disclosure is not allowed, it being too difficult to disentangle, without more detail, from the parallel correspondence about specific disclosure.

[35]There being no challenge to the amount of the fees, the respondent is ordered to pay the claimant costs in the sum of £8,100. This includes VAT, and assumes the claimant himself is not registered for VAT. EMPLOYMENT TRIBUNALS Claimant: Mr J. Banerjee Respondent: Royal Bank of Canada London Central 9 November 2017 Employment Judge Goodman RULE 72 CONSIDERATION OF APPLICATION TO RECONSIDER 1. Under the Employment Tribunal Rules of Procedure 2013 a request for reconsideration may be made within 14 days of the judgment being where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked. 2. Rule 72 provides that an Employment Judge should consider the request to reconsider, and if the judge considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it. 3. Under the 2004 rules prescribed grounds were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds, which were that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing provided that its existence could not have been reasonably known of or foreseen at the time. The Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown

UKEAT/0253/14/LA

that the 2013 rules did not broaden the scope of the grounds for reconsideration (formerly called a review). 4. The claimant has written on 31 October 2017 seeking reconsideration of the judgement on his application for costs which was sent to the parties on 19 October 2017, ordering that respondent pay the claimant’s costs in the sum of £8,100, for the cost of the postponement resulting from the respondent’s breach of an order. The claimant seeks a variation of the order so as to include the cost of the order itself. 5. He followed this up with email on 2 November that: “it seems that the fee notes from my lead and junior counsel did not go through with my original email. Please find attached and accept my apologies”. Attached are the fee notes of leaking counsel attending the hearing of 13 October 2017 at £5000 plus VAT, and another for advising in consultation on 4 October 2017 at £1,165 plus VAT. 6. In the original costs application of 20 September 2017, the claimant provided full details of the grounds, and the amounts sought, with copy invoices. The concluding page of his application said: “in the event these costs are not agreed, I will further apply the costs of leading and junior counsel at the PH which will be necessary to determine my costs”. The respondent replied to this on 9 October 2017 to the tribunal, and sent written submissions to the tribunal 16 October, the day before the hearing. 7. The tribunal cannot trace that any further application was made for the costs of the hearing itself, either before or at the hearing. I have reviewed my notes of the hearing, where the claimant was represented by leading counsel. There was discussion of individual items of costs, as well as the general principles of whether an order should be made. Nothing was said about the costs of the hearing. This fact was noted in the judgment (30) 8. In the absence of information or explanation as to why the claimant did not apply for the costs of the hearing, or give the tribunal the information, which would have left it to conclude that an application for the costs of the hearing was being made, the Tribunal concludes that this occurred by oversight. 9. Had an application been made, the tribunal would have had to consider whether the hearing was in any event required to deal with the specific disclosure points specifically reserved to that hearing as well as the costs points. The tribunal would have had to consider whether if there had been no costs application to decide, the hearing would still have taken taken place, and whether the claimant would have been represented on the specific disclosure matter alone by senior or junior counsel. These points will become relevant if the matter is reconsidered and will have to be argued, in person or by written representation. 10. The interests of justice include fairness, which might in some circumstances include a party adding a point, or adding evidence, which he could have brought as the hearing but overlooked for some reason. Knowing what the reason was for not doing so first time round may be relevant to fairness, but on the face of it, this point could have been argued, but was not. I add that the tribunal noted at the time that no application for costs of the hearing was made and concluded it was probably because of the specific disclosure application, and the list of issues which required revision, though in the event that was deferred. 11. The interests of justice also require finality, and the parties should not as a rule have a second shot at a decision with which they are disappointed, and that the other side should not be put to additional expense in arguing points which could have been brought at the hearing. 12. The application to reconsider does not disclose grounds from which it could be argued successfully that it should be reconsidered. I conclude it has no reasonable prospect of success. Accordingly it is refused under rule 72.

[36]There are two stages at which the Tribunal has regard to justice and equity in considering the compensatory award. Pursuant to Section 123(1) ERA the Tribunal should award compensation of such an amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as the loss is attributable to the action taken by the employer. Section 123(6) ERA provides that where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion that it considers just and equitable, having regard to that finding.

[37]The predecessor to Section 123(1) ERA founds what is referred to as a Polkey reduction where it is decided that there is a chance that had a fair procedure been operated the employee would have been dismissed in any event. This may result in it being appropriate to reduce compensation because the loss has not been sustained by the employee entirely by reason of the action of the employer.

[38]In a case where the conduct of the employee occurred prior to the dismissal, and was causally connected to the dismissal, the compensatory award may be reduced under Section 123(6). If the unfairness had a causal effect on the dismissal a finding of 100% contribution may not be made. The causal connection between the conduct and the dismissal is not required under Section 122(2) or 123(1).

[39]In considering Polkey, contribution and just and equitable compensation the Tribunal has to make its own factual findings about what would have happened had a fair procedure been applied and/or whether the misconduct did in fact take place.

[40]The concept of contributory fault can be applied even to cases of automatic unfair dismissal: see the approach of the authors of Harvey on Industrial Relations and Employment Law, CIII [127]; DI [1967]–[2350].

[41]Where there has been a breach in the ACAS Code of Practice on Disciplinary and Grievance Procedures an uplift may be awarded of up to 25% of any financial compensation that is awarded. Findings of Fact

[42]The Respondent is part of a financial services group providing personal and commercial banking, wealth management, insurance, investor services and capital markets products services. The Respondent employs approximately 1,900 people in the UK.

[43]The Claimant has worked in banking since 1990. In 1995 he joined Citibank as a senior trader in European currency trading. While working at Citibank the Claimant first met Paul Adamson, whom he managed for a period, and subsequently was managed by at the Respondent. The Claimant moved to work in emerging markets currency trading. The Claimant has been very successful as a currency trader. He measures that success in terms of the money that he has earnt, noting in paragraph 6 of his witness statement that when he moved to Barclays he was for the first time paid more than £1 million a year.

[44]The regulatory regime for banking has changed significantly since the financial crisis and the foreign exchange trading scandal. The Claimant’s activities are regulated by the Financial Conduct Authority. The Claimant, as a person performing controlled functions, must be approved by the FCA. He is required to operate in accordance with the Principles for Business. These provision place legal binding requirements on banks staff.

[45]This stricter regulatory regime has been mirrored by a growth in internal compliance procedures designed to ensure that bankers conduct themselves appropriately. This became a cause of concern to the Claimant during his employment by the Respondent for two principal reasons. First, he considered that there was a tendency for compliance to over regulate in a manner that would make it much more difficult for him to carry out his primary function of making money. Second, he considered that such extensive regulation could lead to a box ticking culture in which his colleagues attested to having read the procedures without having done so, or having only read them briefly. Extensive and voluminous procedures can, paradoxically, result in failures to comply with fundamental regulatory requirements because the procedures are so detailed and extensive that few employees read them properly. This became an increasing concern for the Claimant as his employment with the Respondent progressed.

[46]The Claimant was also concerned about a “new world order” in which a desire for greater diversity in the workforce could lead to unlawful positive discrimination in favour of women. He also felt that criticism from a female colleague, particularly of being aggressive, could result in a stain on his employment record, and so must be vigorously counted.

[47]The Claimant describes himself as dealing with his concerns in a “forthright” manner. That is an understatement. The Claimant was unrelenting in raising his concerns and rarely sought to win friends or influence people. However, he often made good points which, at least in the early stages of his employment, were taken on board, even if there was some exasperation at the manner in which he made them.

[48]By letter dated 22 April 2015 the Claimant was offered employment as Emerging Markets FX Trader within Fixed Income Currencies and Commodities (“FICC”) with the corporate title of Director. The Claimant signed the offer letter on 5 May 2015. His hours of work were stated to be 35 per week, Monday to Friday, with one hour for lunch, with a requirement to work additional hours because of business and client requirements without additional remuneration. In reality the Claimant worked greatly in excess of 35 hours per week and would attend the office at unsociable hours when was necessary.

[49]The Claimant’s first day of employment was 15 June 2015.

[50]The start time for the office was 7am. The Claimant saw this as an aspiration rather than a rule. This was to become an increasing source of friction with his manager, Mr Adamson. While I accept that the Respondent’s witnesses placed excessive emphasis on the need for Claimant to be in at 7am so that the trading book could be passed from Hong Kong and inaccurately suggested this allowed the Hong Kong traders to leave work (this contention failing to take into account the time difference which means that Hong Kong traders would not be about to leave work at 7am UK time) and on the requirement for the Claimant to be at the morning meeting with other currency traders (a point that was not raised in his appraisals at the time), I do accept that the Respondent considered that the Claimant should attend work on time, even if he was working unsocial hours, and that this was a genuine cause of dispute with Mr Adamson.

[51]In August 2015 a draft Global FX policy was circulated to manager. This was designed to meet tightening regulatory requirements.

[52]On 21 September 2015 Mr Adamson told the Claimant in a Bloomberg chat that he needed to be at the office at 7am. The Claimant responded “I know. I am so sorry. I will be coming in ahead of 7am by bike from now on”

[53]On 23 October 2015 Mr Monaghan circulated a copy of Global FX policy.

[54]On 27 October 2015 Mr Monaghan was in Canada and heard a rumour that the Claimant had been contacted at home and woken up the previous Friday (23 October 2015) and told to get into work. In an email to his team that day Mr Adamson stated “hours of work are 7am to 5pm and we will kindly stick to such”.

[55]On 28 October 2015 Mr Monaghan said to Mr Adamson in a Bloomberg chat about the Claimant “also one more late arrival after night out and he can expect a written warning”. Mr Adamson responded “dealt with”. It is notable that the criticism of the Claimant for arriving late to work and the possibility of a written warning was raised before the Claimant had made any of his alleged protected disclosures. I accept that it was a genuine concern.

[56]That day Mr Adamson, in a Bloomberg chat with the Claimant, stated “your 9am start got noticed fyi”. The Claimant replied “it was 8.06am according to the receipt btw but I hear you”. In fact the Uber receipt shows that the Claimant left home at 8.06am and arrived at 8.37am. The Claimant ended the chat by stating “legend will have at noon by the weekend”. This was prescient as subsequently a rumour arrose that the Claimant had to be woken up and dragged into work in the afternoon.

[57]On 30 October 2015 the Claimant raised various concerns about the Global FX policy by email and Bloomberg chat. His main concern was that parts of the policy seemed unworkable and could prevent him trading successfully. He was also concerned that breach of what he saw as unworkable policy could result in disciplinary action. He was not alone in raising these concerns. He continued to challenge the policy by email on 2 November 2015 noting that the scope for litigation and regulatory action was significant and growing. In a conversation with Mr Monaghan he raised his concern that colleagues in London, Hong Kong and Toronto had not read the policy. In an email on 3 November 2015 he stated “I have concluded that it is not possible to comply with the policy as written and operate as we currently do. I look forward to what comes back.” In a Bloomberg chat that day he stated that in a forthcoming meeting he would state that the Global FX policy would make it “impossible to deal at mid, especially in illiquid markets”. This was a reference to his trading in emerging market currencies which are illiquid in comparison with G10 currencies.

[58]That day Mr Adamson sent an email to Martin Carbin, Director, Compliance, RBC Capital Markets stating “As a heads up before the training starts, the problem we are going to have in the sessions is that the manual is stuck in the middle of descriptive and definitive and allowing traders some leeway … Just a heads up because I can see the session becoming a little heated and tedious!”. Mr Adamson’s particular concern was that the Claimant was steadily becoming more dogged in his criticisms of the policy. Later that day the Claimant sent an email to a wide range of recipients, including senior managers, stating “I think it VITAL that we have a meeting with all the affected parties”.

[59]On 5 November 2015 the Claimant sent a further email, again with a wide circulation list, stating “I am gravely concerned that the level of understanding of the implications an effect of the Policy as written are not close to being fully understood by the Business.” He referred to there being “a degree of cognitive dissonance” and stated that regulators were under increasing pressure to raise revenue from fines, produce bankers’ “heads on spikes” and adopted an approach of “guilty until proven innocent”. He attached a photograph of an Audi with a registration plate “FCA 1” stating “who is going to pay for the upgrade to an R82? Let’s make sure it isn’t us!”.

[60]Mr Adamson became concerned that the Claimant was expressing himself in excessively forceful language and displaying antagonism to regulators.

[61]Shortly after the Claimant’s email was sent, Mr Monaghan sent an email to those who had been party to, or copied into, the discussions, stating “let’s take this off-line at 9am please.”

[62]Sian Hurrell, Head of FICC Europe and Head of FICC Sales Europe replied to Mr Monaghan alone stating “can we discuss?” to which Mr Monaghan replied “nightmare”. I accept that this was a reference to the excessively flamboyant manner in which the Claimant was expressing his concerns.

[63]On 12 November 2015, Mr Adamson said in an email to Mr Carbin “please don’t think a war us agst you guys regardless of John! :). Were nearly there!”. Managers were under pressure to get a policy in place that would be consistent with its regulatory obligations.

[64]The Respondent operates an annual computerised attestation process in which employees have to state that they have read applicable policies, have abided by them and will abide by them in the future. While carrying out this process in November 2015 the Claimant took many hours to read all of the policies and noted that a hyperlink to the Capital Markets Policy on Personal Trading did not work. He raised this concern to various in the compliance team by email on 18 November 2015 and then completed the attestation process subject to the proviso that he had read a document he had been provided with that had a slightly different title to that on the broken link.

[65]A period of half an hour is set aside for each employee to conclude the attestation process. The Claimant adopted an excessively literal approach in argunig that it was necessary to read every policy from beginning to end in order to be able to complete the attestation. Many employees would have read the relevant policies during the course of the year and would need only to satisfy themselves that there had been no significant amendment that was relevant to their work before being able to attest. However, even where the majority of policies had previously been read, checking for new policies and significant amendments would be bound to take a significant period of time; likely to be at least the half hour set aside.

[66]On 19 November 2015 Mr Adamson sent an email to the Claimant stating “it’s 7:30am - I hope everything is okay … Assuming such - you are putting me in a really difficult position. We start at 7am.” 2 an expensive sports car

[67]That day in a Bloomberg chat the Claimant sent some policy documents from JP Morgan to which Mr Adamson stated “JB just leave it … It’s being done and you don’t need the attention … let Compliance comply”. The Claimant stated “the fact that I was in a minority of 1 of people who read the Global Policy, ought to scare the daylights out of everyone”. While I accept that the Claimant genuinely believed that many people had not fully read the current draft of the policy it was hyperbole to suggest, as he did by implication, that he was the only person who would read it at all. In the exchange the Claimant was reminded of the 7am start time. I do not accept that this was being done because the Claimant was raising concerns about the Global FX policy. By this stage the Claimant’s failure to attend work on time was a long standing cause of friction.

[68]At about this time Mr Adamson told the Claimant that he was putting people’s noses out of joint. I accept that at this stage this was a reference to forcefulness with which the Claimant was raising his concerns; more than with their content.

[69]The Claimant got into a dispute with one of the compliance team who he felt did not properly understand the distinction between “may” and “will” in the context of breaches of the policy leading to disciplinary action.

[70]On 23 November 2015 the Claimant sent to usual wide range of recipients further comments on the draft policy stating “Alex price and I have been through the latest draft. Barring obvious typos, our material comments are as follows.” In response on 23 November 2015 Mr Carbin stated “in the spirit of what we are trying to achieve here, can we please keep the feedback comments to a limited audience. Further, comments such as “barring obvious typos” are not helpful. I’m sure you’ll appreciate we are getting a little “word blind on this policy” …. and I’d be grateful if you could highlight any obvious or not so obvious ones we may miss. Shortly thereafter Thomas Blodgett, Business Manager, FX sent an email stating “let’s discuss this tomorrow as a group. Until then I’d asked that the emails stop”.

[71]Under cross examination the Respondents’ witnesses involved in this exchange accepted that there Mr Monaghan Mr Palmer was nothing rude about the Claimant stating “save for obvious typos”. However, I consider that at the time they felt he was beginning to antagonise the compliance team by the tone he was adopting. That day Mr Adamson stated in a Bloomberg chat to the Claimant “regardless of your intention do yourself a favour and write the emails with a little bit of respect … be constructive and collaborate with them or do nothing”. The Claimant responded “he won’t accept major points and wants me to proof read his typos!” That demonstrates the antagonistic approach the Claimant was taking.

[72]In a Bloomberg exchange between Mr Monaghan and Mr Adamson on 25 November 2015, referring to a forthcoming meeting about the Global FX policy, Mr Monaghan stated “we need this 3pm to go smoothly… some high-level people interested … we are behind 95% of the street on this”. The final comment was a reference to the fact that the Respondent was beginning to lag behind other banks in getting policies in place. Mr Monaghan and Mr Adamson were becoming exasperated by the Claimant’s approach. However, Mr Adamson went on to state in the chat “on the plus side John has sharpened the document up a lot and in hindsight the original versions were terribly loose” to which Mr Monaghan replied “100% agree”. I accept that this demonstrates that, at the time, the concern was about the tone rather than the content of the Claimant’s contributions to the discussions about the new policy. That day an email was sent stating that the meeting was to be postponed, whereas a meeting went ahead with a smaller group of attendees, excluding the Claimant. This was because it was thought that he would not assist in getting the policy finalised. The Claimant realised the meeting had gone ahead and asked for a meeting with Mrs Hurrell which took place on 26 November 2015. The Claimant continued to raise his concerns about the policy and that people were not reading policies before signing their attestations. At the meeting the Claimant referred to “soul-searching” and said that he felt that he had lost the “passion” he had from making money.

[73]On 27 November 2015 Mr Adamson sent an email to the Claimant stating “below are two previous emails both stating the hours of work… its currently 8.13am and you aren’t here … We’re covering your order books and watching your position is for you… this is fast becoming a problem”. Shortly thereafter in a Bloomberg chat Mr Adamson stated “I’ve asked you at least three times to be in on time – I’ve told you it gets noticed”. The Claimant responded “I’m not trying to take the p. I am truly sorry and last warning noted.” To which Mr Adamson stated “well you are and its bolx”. The Claimant replied “I am very very sorry and it will not happen again”. I do not accept the suggestion that timekeeping was only being raised because the Claimant was raising concerns about the Global FX policy. His timekeeping was a genuine concern and he accepted it as such at the time.

[74]Many of the concerns raised by the Claimant and his colleagues were taken into account in the final draft. In a Bloomberg chat of 27 November 2015 the Claimant felt able to state “I think from our perspective, the document is now safe.” In cross-examination the Claimant stated “I felt that the concerns had been dealt with, yes, but in truth I had some support from Ms Hurrell in this but Mr Monaghan was being very obstructive along the process. He just wanted it completed so that it didn't matter what the policy said at all.” Despite this negativity about Mr Monaghan I consider the Claimant was satisfied with the amended policy.

[75]The final version of the Global FX policy was circulated on 1 December 2015.

[76]On 3 December 2015 Mr Adamson sent an email to the Claimant at 7.44am Stating “Where are you?”. He forwarded the email to Mr Monaghan stating “any suggestions where we go from here?”. Mr Monaghan replied in a Bloomberg chat “we will extend probation for three months and if it happens again it will be a formal disciplinary”. A meeting was held that day and the Claimant was informed of the extension of his probationary period. In a Bloomberg chat Mr Adamson stated that the Claimant had been apologetic after the meeting. I accept that his poor timekeeping was the genuine reason for the extension of the Claimant’s probation. The Claimant did not challenge the extension at the time. I also consider that Mr Monaghan and Mr Adamson considered that if his timekeeping did not improve formal disciplinary action would be required.

[77]On Sunday, 13 December 2015, Paul Green, FX Trader, in Hong Kong, who was covering the desk alone in the very early hours of the morning, failed to action call and stop loss orders for Zimbabwean dollars for the Claimant. Initially, Mr Green claimed that he did not see the call order on the system. This was because it had been accidentally removed when the Claimant cancelled some other call orders. The Claimant considered that Mr Green had been incompetent and wished to recover the losses that had been occasioned to his book because of a sudden decrease in the value of the Zimbabwean dollar after a change of finance minister. In comments that the Claimant added to an email on 22 December 2015 he seemed to accept that it was a myth to suggest that there were not enough staff on the desk at the time and that it was essentially a matter of human error.

[78]After an off-site meeting in January 2016, Mr Blodgett recorded on 11 January 2016 “to address the gender and minority gaps all new hires will only be approved if they are women, diverse and the right candidate and fit for our clients and RBC”. He may have been somewhat overstating an attempt by the Respondent to increase the diversity of their workforce. The Claimant was concerned that it suggested that unlawful positive discrimination in favour of women would take place. However, I do not accept he made any significant disclosure about this issue or that that it had any effect on his eventual dismissal.

[79]On 12 January 2016 Al-Karim Ramji, Director, Treasury Management, complained to Mrs Hurrell about the way in which the Claimant had spoken to Cilline Bain, an Analyst in FX Sales. When Mrs Hurrell raised the matter with the Claimant he became annoyed and jabbed his finger at her. Mrs Hurrell told him to stop doing so but, being a robust character, did not take the matter any further. Mrs Hurrell investigated the incident with Mr Bain and concluded that the Claimant had been loud and assertive; but no-one with whom she had discussed the matter felt that he had crossed a line in terms of appropriateness. On 14 January 2016, the Claimant alleged that Mr Ramji had bullied him by making the allegation.

[80]In a meeting with Mr Monaghan on 15 January 2016 the Claimant continued to complain about the incident with Mr Bain. The meeting became heated and was overheard colleagues of the Claimant who speculated in Bloomberg chat about the Claimant’s future and whether he might “quit”.

[81]In an email of 15 January 2016 Mrs Hurrell suggested that the fact that she had decided that the Claimant had become heated, although he had not crossed the line, supported Mr Ramji’s decision to escalate the matter. The Claimant, wisely, stated that he wished to draw a line under the matter, as a result of which his complaint was not progressed.

[82]In a Bloomberg chat with Mr Adamson on 15 January 2016 the Claimant referred to having a conversation “after you fill me in on whatever it is that you have to fill me with re. my ZAR money”. This demonstrates that the key concern of the Claimant was that the loss incurred to his book from the Zimbabwean dollar trade should be made good.

[83]On 18 January 2016 the Claimant met again with Mr Monaghan and discussed the Hong Kong incident. Mr Monaghan felt the matter was no more than an error in exceptional trading circumstances and felt that the Claimant was making far too much fuss about it. He said words to the effect “do you want me to cut you a cheque?” by which he meant transfer the trading loss from the Claimant’s book. He felt that it was irrelevant where the loss was recorded. He made the comment out of exasperation as he was trying to understand what was causing the Claimant to continue to argue. I do not consider that it can be properly said that Mr Monaghan offered the Claimant a “bribe”. Mr Monaghan did hope that what he considered to be a genuine trading loss would not be escalated. However, during the meeting it became clear that the Claimant was not going to let the matter lie and on 19 January 2016 Mr Monaghan sent an email to Mr Blodgett stating that the matter should be referred to Operational Risk.

[84]The Claimant met with Mrs Hurrell on 18 January 2016 and asked whether there might be an opportunity to move to another trading group. He was very unhappy about the meeting he had attended with Mr Monaghan. Mrs Hurrell was not able to find an alternative role for the Claimant.

[85]On 17 February 2016 Mr Adamson asked the Claimant in a Bloomberg chat “can we go back to the closer to arrivals pls … closer to 7. The Claimant responded “Sure. Apologies. I had an Uber cancel on me this mng”. At this time Mr Adamson was adopting a relatively soft touch to the Claimant’s timekeeping. There are further messages that suggest that it was noticed that the Claimant was late on 19 and 22 February 2016 without action being taken against him.

[86]On 26 February 2016, a draft Operational Risk report was circulated. The Claimant made a number of comments alleging that the criticisms that he had raised had not been sufficiently recorded and raised a concern that a client had been caused loss as a result of the incident.

[87]The Claimant’s extended probationary period ended on 9 March 2016. On 18 March 2016 Mr Adamson sent an email to Mr Monaghan attaching a performance review form with the Claimant’s performance against Key Behaviours stating “happy for me to proceed? I am happy”. Mr Monaghan approved the decision of Mr Adamson to confirm the Claimant’s employment at the end of the extended probationary period. The Claimant accepted in cross examination that the Respondent could, if they had been as upset as he contends by the disclosures he alleges had been made by this stage, have simply decided not to confirm his employment. They did not do so. I do not consider that any disclosures made by the Claimant prior to this date had a significant impact on the eventual decision to dismiss him.

[88]On 22 March 2016 Vanessa Gibson, Vice President, European FX Sales made a pricing error leading to a loss on the Claimant’s book. The Claimant complained to Mr Monaghan who told him that he should send an email to Alex Price, Managing Director, Head of FX Sales, Europe. Ms Gibson heard about the complaint and came over to the Claimant’s desk, and alleged that the Claimant had been “extremely aggressive to her all day”. The next day the Claimant met with Mr Adamson and Ms Gibson, who retracted the accusation of him “being aggressive all day” but said she felt he was “being underlyingly aggressive to her all morning”. The Claimant was extremely upset by the complaint. By 23 March 2016 Ms Gibson had sent the Claimant an email stating “I take back my comments from yesterday evening and this morning referring to your “aggressive tone” and hope that we can bury this to move on and work together”. The Claimant responded that the retraction was not sufficient. Ms Gibson responded that she took back: “yesterday’s comment accusing you of being aggressive all day, this morning comment of an aggressive underlying tone”.

[89]On 23 March 2016 the Claimant met with Urmilla Devitt, Head of Employee Relations, British Isles, Europe and Asia Pacific. Mrs Devitt suggested that the matter would best be dealt with informally. She suggested that the Claimant meet with Ms Gibson and Mr Price so that the apology could be reiterated. In a text exchange on 24 March 2016 Mr Adamson noted that Mrs Devitt had said that she felt that the Claimant was “aggressive and extremely condescending” towards her in the meeting.

[90]The Claimant met with Ms Gibson and Mr Price on 24 March 2016. Ms Gibson reiterated her apology. She said that she felt that the Claimant could be abrupt to which the Claimant responded that he could be abrupt “in the face of incompetence”. Mr Price brought the meeting to an end to avoid further argument.

[91]After the meeting the Claimant stated that he required written confirmation that he did not act unprofessionally and that Ms Gibson would not make further allegations against him. Ms Gibson was advised by HR not to respond further in writing. On 29 March 2016 the Claimant raised a formal grievance. Mr Adamson, Mr Monaghan and Mrs Devitt understandably considered that the Claimant’s response was disproportionate. His refusal to accept the retractions made by Ms Gibson and the forceful approach he took in meetings and correspondence resulted in Mrs Devitt forming a very negative opinion of him that continued for the remainder of his employment. He lost the goodwill of the HR and ER teams.

[92]The Claimant submitted a formal grievance against Ms Gibson on 29 March 2016.

[93]On 30 March 2016, Michael Flood FICC Compliance Advisor sent an email to staff asking that they sign a declaration in respect of the US provision ,SEC 15a-6, dealing with trading securities. The Claimant challenged whether it was appropriate for him to sign as he did not trade securities. In a text exchange on 1 April 2016 Mr Adamson said of the Claimant “he’s not wrong on this compliance thing either… usual abrasive manner not wrong”. Mr Monaghan replied “I must agree. I will take that one up when back”. On April 1 2016 an agreement was reached that FX staff would not be required to sign the document. Both Mr Adamson and Mr Monaghan thought that the Claimant had made a good point. His raising of the SEC 15a-6 issue had nothing whatsoever to do with his eventual dismissal

[94]On 31 March 2016 Mr Adamson sent an email to the Claimant stating “you are the only person in FX that doesn’t live to the 7am start. It’s 7.26 now. Please can we keep some sort of formal timekeeping.” Mr Adamson continue to adopt a relatively light touch to monitoring the Claimant’s timekeeping.

[95]On 4 April 2016 the Claimant sent an email to Mr Adamson stating “apologies. I have been finding the pillow magnet turned up pretty strong recently… I will make more of an effort, to physically turn up earlier in the office.” It is clear that at this stage the Claimant’s late attendance was an irritant to Mr Adamson, rather than a matter of fundamental importance.

[96]On 5 April 2016 the Claimant attended a grievance hearing about the Gibson incident with Sean Taor, Head of Europe Debt Capital Markets and Syndicate who was supported by Sophie Constable, Employee Relations Specialist. The record of the meeting shows that Ms Constable felt that the Claimant was not listening to her and she had to tell him to stop raising his hand.

[97]On 6 April 2016 Mr Adamson sent an email to the Claimant at 7.33 stating “there is no ONE rule for you and ONE for the rest of us. This is crap John.… Get to work on time and stop taking the piss”. This indicates that Mr Adamson was now beginning to lose patience with the Claimant. In fact, the Claimant had been to client meeting and it was agreed that the email should be ignored

[98]On 7 April 2016, Jonathan Hunter, Global Head of FICC, held a town hall meeting that staff could attend remotely from their desks. Mr Hunter stated that it was not acceptable to know that something was wrong and to say nothing. He stated “don’t ask, don’t tell will not be tolerated”.

[99]On 11 April 2016 the Claimant sent an email to Mr Hunter, copied to Mr Monaghan and Mrs Hurrell (“the DADT email”). He stated:

[100]The Claimant then gave three specific examples; the Global FX policy, the Hong Kong Operational Risk investigation and the SEC 15a-16 issue. The Claimant concluded:

[101]The Claimant’s primary contention was that there was a box ticking culture as a result of which it was likely that a significant number of employees were attesting to having read policies that they had not read carefully, or at all, as a result of which there was likelihood that the bank would fail to comply with fundamental FCA and other legally binding regulatory requirements, of the type introduced to prevent a recurrence of the financial crisis.

[102]Shortly after receiving the DADT email Mr Monaghan forwarded it to Mrs Devitt. When asked why he did this in cross examination Mr Monaghan said: “It had the tinge of whistle-blowing and I wanted to make sure it was not just stopped”.

[103]Mrs Devitt organised a discussion with Mr Monaghan and Mrs Hurrell. Mrs Devitt forwarded the DADT email to Richard Sheldon, Chief Compliance Officer, Europe and Asia and Jeremy Thomas, Head, Capital Markets Compliance Europe, whom she met with that day.

[104]Mr Hunter forwarded the DADT email to Howard Plotkin, Head of US Compliance and David Lang, Managing Director, Global Compliance, RBC Capital Markets, Investor & Treasury Services and Wealth Management, Canada and Australia. Mr Sheldon confirmed to Mr Hunter, copied to David Thomas, that he and Mrs Devitt had decided to appoint Adrian Palmer, Head of Internal Audit, UK, as investigator and to treat the matter as a formal WB complaint.

[105]Francine Blackburn, then Executive Vice President & Chief Compliance Officer, noted that the email appeared to be a criticism of both UK and Canadian Compliance and asked to meet Mr Lang and Mr Sheldon.

[106]The DADT email was circulated to some of the most senior managers at the Respondent almost immediately after its receipt. There was a hive of activity. However, there are no notes of the meetings and discussions. A central issue is whether the activity was focused on genuinely investigating a whistleblowing complaint; or shutting it down.

[107]Later that day Mr Hunter responded to the Claimant “thx very much for your email. I will do some digging on this point and revert to you. John, I really appreciate you bringing this to my attention and will revert in due course.” Again, much turns on how genuine this response was.

[108]On 14 April 2016 Mr Palmer had a number of discussions about the Claimant’s DADT email with senior managers including his manager, Gladys Griffiths, Global Head of Capital Markets Audit, Mr Hunter, Robert Guignard, Chief Audit Executive, Michael Percy-Robb, Vice President, Internal Audit, Canada, David Thomas, Chief Executive Officer, RBC Europe. Mr Palmer made notes of his conversations on a printout of an email exchange about the DADT email. The notes start with comments from Mr Hunter who is recorded as stating: “"Used Town Hall. I don't know this guy. A bit of a blowhard. Been with us a year, no performance issues. Doing an okay job but some question about long-term producer."

[109]The Chambers Dictionary defines a “blowhard” as a “boastful or loudmouthed person”. This pejorative description of the Claimant does not fit well Mr Hunter’s apparently positive response to the DADT email.

[110]There is a note referring to “whistleblowing” and to the board and regulator. Mr Palmer said in cross examination: “I think that was notes from the meeting I had with the internal audit people, Griffiths, Guignard and Percy-Robb, from memory. And it was a question they were asking me, what the process is. You know, what is the policy, procedure? Does the whistleblowing get reported to the board? Does it get reported to the regulator?”

[111]It is apparent that from the outset there was a concern that the matter might have to be reported to the board and, possibly the regulator.

[112]There is a note “Who in EL looking at court possibility?”. Mr Palmer suggested that EL was an abbreviation for RBC Europe Limited. I accept the suggestion put to Mr Palmer in cross examination that EL was a reference to external legal. There was a note "court possibility". Mr Palmer stated “I think it was a question, and I'm guessing it was from Percy-Robb because that's the sort of thing he would ask, about who within the London business would be considering how far this would go. So he was just thinking forward.” Mr Palmer "How do we structure 'review' given future possibilities?" When Mr Palmer was asked why he used inverted commas around the word review he stated “Yeah, well, there is no reason”. I reject his evidence and hold that the use of the inverted commas around the word review suggested that it would be a full review in name only. A further note recorded “court possibility”. When asked whether there was an anticipation of litigation Mr Palmer said “Well, I -- I guess so”. I find that litigation was at the forefront of the minds of Mr Palmer and the senior managers he discussed the matter with. This was the context of the comments “"Don't know what dealing with" and “Who is involved, Legal?”.

[113]There is a separate set of notes of Mr Palmer’s discussion with his manager Mr David Thomas:

[114]This shows a decision being taken to limit the investigation to 3 specific examples given by the Claimant rather the general, and most important, complaint that the Claimant made of a box ticking culture that was likely to lead to failures in regulatory compliance.

[115]Mr Palmer states at paragraphs 15 and 16 of his witness statement: “My initial thought from reviewing the 11 April Email was that it would be difficult for me to investigate Mr Banerjee's general proposition that RBC had a "box-ticking culture", as that was too broad and subjective an issue. Therefore, I considered that it would be better to focus on addressing three of the examples Mr Banerjee had given in the 11 April Email. In particular, I decided to focus my investigations on the FX Policy Review, the Hong Kong Incident and the US Questionnaire. I did not consider that it would be possible to properly investigate Mr Banerjee's example which related to the Annual Attestation process. I could have checked the length of time that individuals were logged on to undertake the Annual Attestation. However, I did not believe checking this would really evidence anything as the length of time a screen was open would not necessarily correlate to the time taken to complete the attestation. I also considered that interviewing a sample of employees would not be conclusive as their responses to an Internal Audit officer may not necessarily be reflective of the actual position. I therefore considered that this example could not be investigated in a way that I would be able to draw firm conclusions.”

[116]Mr Palmer’s first decision, led by Mr David Thomas, was not to investigate the Claimant’s primary concern. When asked in cross-examination whether he had told the Claimant that he was limiting his investigation, he said “I didn't think it was particularly necessary at that point in time, and I had only just started the investigation. So that was my thinking at that time. And it may well have changed. It didn't, but it could have done” . I do not consider that was any realistic chance on this approach changing. The decision was to shut down the complaint. There were numerous ways in which the allegation of a box ticking culture could have been investigated. While the time taken to complete attestation only gives some indication of the extent to which policies have been read, as they might have been read previously, if analysis of the data showed, as the Claimant was contesting, that many members of staff only took a couple of minutes to complete attestation, this would strongly suggest that they could not have even checked whether they had previously read the policies or whether they had been updated. A sample of employees could have been selected for interview. They could have been asked how they went about ensuring that they were up to date with the bank’s policies and were meeting regulatory requirements. The Claimant’s statement that he had been told that attestation could be treated like ticking the box to accept terms when upgrading mobile phone software could have been investigated. When asked whether this could have been investigated Mr Palmer stated “In hindsight, yes, I could have done that.” I hold that the bank wanted to avoid any investigation of a complaint that suggested that there was a systemic failure to ensure that policies had been fully read and understood.

[117]In the meantime, on 12 April 2016, Mr Taor handed the Claimant the Gibson grievance outcome. The Claimant had antagonised Ms Constable and Ms Devitt during the Gibson grievance. Mrs Devitt stated in a text that Mr Taor had said the Claimant was “a particularly odious character”. Ms Constable referred to him as a “horrid man”. I do not consider those descriptions arose from the DADT email but were a result of how they felt the Claimant had progressed the Gibson grievance. However, it did have the consequence that HR and ER viewed him in a negative light and were in no hurry to suggest that the bank need comply with its policies when dealing with him.

[118]On 13 April 2016 Mr Adamson sent a text to Mr Monaghan stating that the Claimant had engaged in a transaction that could have resulted in a loss of “180k”. Mr Adamson sent an email to the team that day stating that exposure to loss should be limited to “100k”.

[119]On 18 April 2016 the Claimant appealed the Gibson grievance outcome.

[120]On 19 April 2016 Mr Palmer sent an email to Mrs Devitt referring to having spoken to Mr David Thomas and Mr Sheldon and stating that “our initial approach” was to look at three examples. In rspect of the first example he stated “I will discuss the list of questions with Dave”. This shows that Mr Palmer was not acting independently.

[121]On 19 April 2016 Mr Hunt sent an email to the Claimant stating that the matters he had raised would be investigated by an independent party and concluding, disingenuously, “thank you once again for bringing your concerns to my attention”.

[122]On 22 April 2016 Mr Adamson sent the Claimant an email stating “7.40 arrival this mrng,.,. you’re putting me in a difficult situation… we start at 7am.”

[123]On 22 April 2016 Mr Monaghan decided to issue a written warning to Mr Green in respect of the Hong Kong stoploss incident.

[124]On 25 April 2000 in a Bloomberg chat the Claimant stated that he had been invited to a meeting with the head of internal audit; to which Mr Adamson responded “humility and professionalism would be my advice for a starting block and go from there. Constructive assistance … However don’t forget Joe Pesci assumed he was going to be made up”. This was a reference to the film Goodfellas in which Mr Pesci’s character, Tommy DeVito, believes he is attending a meeting to be made up in the Mafia, but is murdered. Mr Adamson was well aware that the Claimant was putting himself in harm’s way. The Claimant, by contrast, naïvely believed his concerns were being taken seriously and stated “It seems to me that the points made are finding an audience (at last)”.

[125]On 27 April 2016 the Claimant attended his first meeting with Mr Palmer. He reiterated his concerns about the box ticking culture. Mr Palmer did not take the opportunity to tell the Claimant that he was only going to investigate the specific examples that the Claimant had given.

[126]On 28 April 2016 the Claimant attended the appeal hearing of the Gibson grievance with Mr David Thomas. In a text exchange after the meeting Ms Constable referred to the Claimant as a “creep”.

[127]The Claimant underwent midyear appraisal in May 2016. There was no reference to his timekeeping. This is because although it was considered to be a significant irritant it was not thought to be of fundamental importance at the time.

[128]On 5 May 2016 the Claimant was provided with the Gibson grievance outcome. His appeal was dismissed.

[129]In a text exchange on 10 May 2016, Mr Monaghan wrote “he was late again today? Documented? to which Mr Adamson responded “7.10”. Mr Monaghan asked “Is that late?” to which Mr Adamson replied “Yes, by 10 mins”. Mr Monaghan replied “Document”. The exchanges are telling. Had Mr Monaghan previously thought that the Claimant’s late attendance was of fundamental importance he would have known his start time. I consider that he was instructing Mr Adamson to document the Claimant’s late attendance as he was beginning to think that it might provide an opportunity to deal with the Claimant, whose DADT complaint was making waves.

[130]Mr Adamson wrote to the team by email that day stating “can we please make sure going forward we are all in work by 7am as a rule”.

[131]The final Operational Risk Report into the Hong Kong stop loss event was produced on 10 May 2016. Mr Monaghan treated it as bringing the matter to an end.

[132]On 11 May 2016 Mr Adamson sent an email to the Claimant stating “are you kidding me? It’s 7.25 now.”

[133]On 12 May 2016 the Claimant attended a second meeting with Mr Palmer about DADT. The Claimant spent most of the meeting complaining about the Operational Risk report.

[134]On 13 May 2016 Mr Adamson sent an email to the Claimant stating “why are you doing this? You’re making things very difficult for me.” Mr Adamson forwarded the recent timekeeping emails to Mr Monaghan. Mr Monaghan then forwarded the emails to Emma Dunlop, Senior HR Business Partner, Capital Markets, Mrs Devitt, Mrs Hurrell and David Thomas. He was clearly thinking of using the emails to instigate action against the Claimant. Mr Adamson exchanged texts with Mr Monaghan stating “sent you two email strings. I think enough rope has been let out especially after Mondays email.” At 8.46am the Claimant’s partner sent an email stating “John will not be attending work today as he has been coughing blood and has gone back to the hospital”. Mr Adamson entered into a further exchange with Mr Monaghan stating “when I think most of the cynics amongst us think he had a late Thursday night and he hasn’t replied to any of my emails asking how hospital went etc”. This cynical response to the Claimant’s illness does reflect the fact that Mr Adamson was genuinely getting very irritated by the Claimant’s late attendance. He accepted in his evidence that the Claimant had, in fact, been unwell.

[135]The Claimant met with Myriam Meyer, Head of Human Resources, EMEA, on 16 May 2016. She asked whether there was any underlying cause for the Claimant’s late attendance and about his ill health. The Claimant said there was no underlying cause. Nonetheless, Miss Meyer suggested that Mr Adamson should go easy on the Claimant with timekeeping emails.

[136]During the Claimant’s appraisal process in 2016 Mr Monaghan asked Mr Adamson to tone down the superlatives; which he did. In the Claimant’s comments in the appraisal form he repeated many of his complaints made in the DADT email. In the final version he referred to the alleged bribery on the part of Mr Monaghan. However this final version was not seen by Mr Monaghan.

[137]On 23 June 2016, the night of the Brexit vote, the Claimant had a discussion with Mr Monaghan in which Mr Monaghan questioned his trading and the risks that might be involved because of the large currency fluctuations taking place.

[138]On 28 June 2016 Mr Palmer provided his report into the DADT investigation to Mr Hunter; summarised in the covering email:

[139]By focusing on three specific examples, which had previously been investigated, Mr Palmer was able to suggest that those examples did not support the general allegation of a box ticking culture. In reality, he had done nothing to investigate the Claimant’s principal and general allegation of a box ticking culture demonstrated by the way in which annual attestation was dealt with.

[140]On 28 June 2016 Mrs Devitt drafted a short email to be sent to the Claimant, who was not provided with a copy of the investigation report. Mr Hunter sent the Claimant the anodyne email she produced:

[141]On 7 July 2016 the Claimant was late for work again. In conjunction with Garrett Clinton, Global Head of FX Options, Mr Adamson wrote the following email to the Claimant:

[142]The email was suggested it was a final warning before commencing formal disciplinary action; rather than before dismissal.

[143]On 8 July 2016, in a Bloomberg chat, the Claimant referred to Mr Adamson’s email of the previous day stating “I read your email and get it. I’m still thinking through the question you posed yesterday TBH… I will think on it or properly… I think I do need to make some changes….can we go out for an hour when I’m back.” To which Mr Adamson responded “sure can”. This did not suggest that the Claimant was at imminent risk of dismissal.

[144]The Claimant was on holiday from 11 to 15 July 2016.

[145]On 14 July 2016 Mr Monaghan asked Mr Adamson to come to his office and asked for the material he had in respect of the Claimant. I do not accept Mr Monaghan’s evidence that his request was limited to timekeeping. Mr Adamson sent to Mr Monaghan a series of emails with attachments that day about timekeeping, the Gibson saga and SEC 15a-6. The main focus was on timekeeping.

[146]On 27 July 2016 the Claimant was late again. This led to a series of emails, in which Mr Adamson challenged him by about his lateness. The Claimant sent an email stating “I wake up pretty early. I need to leave earlier, that’s the issue…(and not go round the park just because it’s fun on the occasions I do leave early…). Mr Adamson thought that the Claimant was saying that he had been riding round the park on his motorbike that day; although he accepted in evidence that the email suggested it was something he had done in the past. Mr Adamson forwarded the email to Mr Monaghan stating “this is pointless he doesn’t care”. Mr Adamson then sent the following email to Mr Monaghan:

[147]Mr Adamson accepted in evidence that he sent this email of his own behest. He did not allege that he was asked to write the email by anyone else.

[148]This email led to email chains in which Mrs Devitt, Ms Meyer, Mrs Hurrell and Mr Monaghan were all of the view that a written warning and/or a disciplinary process was in order. Mrs Devitt raised some concern about such a process stating that “it’s more what he will throw in at the hearing” and “just worried where this will go” which she accepted in cross examination was a reference to the possibility of the Claimant raising matters such as DADT.

[149]The lights then go out. While this is largely because the protagonists were away from work, by 8 August 2016 Mrs Devitt stated to Kerry Morris, Senior HR Business Partner, Capital Markets by email “things have moved on since this trail”. Mrs Devitt could not explain how things had moved on. When I asked her about this she stated “I really don't know, sir. I don't know what I was referring to other than there was possibly discussions around a disciplinary hearing that didn't happen”.

[150]On 10 August 2016 Mr Monaghan and Mr Adamson exchanged texts about the Claimant. Mr Monaghan told Mr Adamson “I will remove you from the conversation when the time comes”. Mr Monaghan was referring to is the dismissal of the Claimant.

[151]The Respondent contends that the decision to dismiss the Claimant, without going through any procedure, was taken at a meeting between Mr Monaghan, Mrs Hurrell, Ms Morris and Mrs Devitt on 16 August 2017. There is no record of the meeting. Ms Morris’ note book for this period has been destroyed. Mrs Devitt’s work mobile telephone was wiped in 2017 and only a limited number of messages could be recovered. Mrs Devitt’s personal phone in use at the time was given to her son and was destroyed.

[152]Mrs Hurrell and Mrs Devitt in their witness statement rely on the Claimant having breached his loss limit shortly before the meeting being a significant factor in their decision, whereas the Claimant’s dogged pursuit of disclosure has resulted in the provision of records that establish that the breach of the loss limit occurred after the meeting. In the ET3 it was stated that the decision to dismiss the Claimant was taken by Mrs Hurrell; whereas it is now said to have been a decision taken jointly by Mr Monaghan and Mrs Hurrell. Neither Mr Monaghan, Mrs Hurrell or Mrs Devitt could state who first suggested that rather than giving the Claimant a written warning and/or going through a disciplinary process they should move to dismissal without any process. All three have sought to bolster their reason for dismissal by suggesting that the Claimant would be a risk if he remained on the desk. At the time the script for dismissal, record of dismissal meeting and dismissal letter were produced they suggested that the only reason for dismissal was timekeeping. They could not explain why they did not await the return of the Claimant’s line manager, Mr Adamson, before making the decision.

[153]Later on 16 August 2016 there was an incident when the Claimant exceeded his loss limit. Mr Monaghan sent him an email reminding him that the loss limit was “100K”. He did not suggest the breach was a disciplinary matter.

[154]On 17 August 2016 Ms Morris typed a document designed, falsely, to appear as if had been sent by Mrs Hurrell to her and Mrs Devitt. It was headed Solicitor Client Privileged, Litigation Privileged, Confidential. Mrs Hurrell gave evidence that no lawyers were involved. She could not explain the heading. The document suggested that timekeeping was the reason for dismissal. There was no reference to a breach of the Claimant’s loss limit. A script was produced for a dismissal meeting that again stated that the reason for dismissal was timekeeping.

[155]On 18 August 2017 the Claimant attended a meeting with Ms Meyer and Ms Morris. The Claimant was given notice of dismissal and placed on garden leave. The Claimant was given a letter in the following terms:

[156]There is a record of a Bloomberg chat between colleagues of the Claimant, Harley Farovitch and Stuart Davies, on 19 August 2018, in which Mr Davies stated “‘can’t say I’m scratching my head – when u basically make so much noise u walk a fine line – as Ed said last night …. he didn’t know when to ease off”. When Mr Monaghan was asked why Mr Davies said he made such a comment if he did not, Mr Monaghan said “I don't know, you'd have to ask Stuart. That might have been Stuart's view. I can't speak for Stuart”. I hold that Mr Monaghan did say that the Claimant had made noise and implied that was the reason he had been dismissed.

[157]The Claimant appealed against his dismissal. Mrs Devitt was obstructive when the Claimant sought documents for use in the appeal. Stephen Krag, Chief Financial Officer, Europe, who chaired the appeal, did not interest himself in Claimant’s request for disclosure, taking the view that they documentation could only be provided if HR said so. He delegated the investigation to Mrs Devitt who ask a limited number of short questions of Mr Monaghan and Mr Adamson. Mr Adamson stated that he believed the sole reason for the dismissal was the Claimant’s timekeeping. He stated in evidence that was his belief at the time. During the investigation Gareth Hughes, Managing Director, Head of Regulatory Compensation. Formerly Head of HR, sent an email to Mrs Devitt on 12 October 2016 asking “what was the trigger for firing him at that time on that day” to which Mrs Devitt replied: “there was no specific reason as to why the business decided to pull the trigger the day they did. They had been looking to dismiss for some time and I recall the driving round the park email being the tipping point. They did discuss with MM and ER whether he should be disciplined for tardiness, but the view was that he had been informally warned so many times a disciplinary warning would make no difference to his general conduct”

[158]When asked about this Mrs Devitt replied obscurely “I'd formed a general view that there was a sequence of events that was driving an increasing view that the situation was becoming untenable.”

[159]Mr Hughes did not trouble to tell Mr Krag that the bank, while he was head of HR, had been castigated by the Employment Tribunal and Employment Appeal Tribunal in King v RBC Europe Ltd [2012] IRLR for its wholly unacceptable practice of dismissing employees without going through any reasonable procedure. Its actions had been described as “unfair and brutal”. It does not appear that Mr Hughes had reflected on these criticisms or concluded that it might be a good idea for the bank to change its ways.

[160]Unsurprisingly, the Claimant’s appeal was dismissed on 10 November 2016.

Analysis

[161]I have first considered what was the principle reason for the dismissal of the Claimant. I accept that Mr Adamson had long-standing concerns about the Claimant’s failure to attend work on time. By the middle of 2016 he was becoming increasingly impatient with the Claimant. I accept that he wrote the warning email of 7 July 2016 and his email of 27 July 2016 because he was genuinely infuriated by the Claimant’s tardiness.

[162]However, I do not consider that the Claimant’s tardiness was the principal reason for his dismissal. It was after the Claimant’s DADT email that Mr Monaghan became interested in the Claimant’s late arrival and instructed Mr Adamson to monitor him. The Respondent was beginning to look for a way of dismissing the Claimant.

[163]Had it not been for the DADT email the Claimant’s late arrival on 27 July 2017 would have been likely to result in a disciplinary process leading to a written warning. What changed this to dismissal, without process, was the Claimant sending the DADT email. I consider that was the principal reason for his dismissal.

[164]After the Claimant sent the DADT email the Respondent looked for an opportunity to be rid of him. I consider this inference is clearly to be drawn on analysis of the evidence. The Respondent’s disingenuous attempts to explain their decision making process, and their deliberate decision not to properly record it, makes it clear that tardiness was not the real reason for dismissal. Mr Monaghan gave the game away the day after the dismissal, telling the Claimant’s colleagues that he had “made too much noise”. The Claimant “made noise” by sending the DADT email.

[165]The Respondent’s witnesses sought to bolster their inadequate reason for dismissal by suggesting that the Claimant had exceeded his loss limit just before the decision to dismiss was taken; whereas the evidence shows that the loss occurred after the decision had been taken.

[166]Mrs Devitt told no more than the truth when she said that the business had been looking to dismiss the Claimant for some time.

[167]What was it about the DADT email that resulted in the Claimant’s dismissal? I consider that the Claimant’s suggestion that the attestation records showed that many employees were only spending a few moments completing the form rang alarm bells. While I accept that staff might read policies during the course of the year and could relatively swiftly check whether there were any new, or significantly, amended policies, this would not take a couple of minutes, but at least the half hour set aside for attestation. Rather than undertaking a proper investigation the Respondent shut the complaint down and deliberately failed to tell the Claimant that they were doing so.

[168]The Claimant’s is dogged in the extreme and, on occasions, chose the wrong battles to fight. No doubt, he was a thorn in the side of his management. Most people choose to stay silent when something is wrong, as they want a quiet life. Those who blow the whistle must have remarkable and, at times, exhausting determination. Employers should take that into account when looking at whistle blowing complaints and ensure that they protect genuine whistle-blowers, even if they find them somewhat enervating.

[169]In telling the Respondent that staff had said that they were completing annual attestation in about 3 minutes, the Claimant was making a disclosure of information. I consider that was information that in his reasonable belief tended to show a breach of a legal obligation; in that he reasonably believed that if staff were not properly reading the company’s policy they were likely to breach legally binding FCA regulatory requirements and their own contractual obligations to read and abide by the bank’s policies. To make that disclosure was clearly in the public interest. If bankers are not reading important policies, and so may breach regulatory requirements, that is of the utmost public interest. The public have the greatest interest in banks avoiding a further financial crisis in which the general public would suffer, as they did in the last.

[170]I consider that there is a clear inference to be drawn that the Claimant was dismissed for making a public interest disclosure.

[171]I accept that, unusually, the Claimant, notwithstanding the bank’s egregious actions, bears an element of responsibility for his dismissal, because of his persistent failure to attend work on time, despite his repeated protestations that he would do so. I consider that he contributed to his dismissal by 25%.

[172]Absent the protected disclosure I consider it is likely that the Respondent would have entered into a disciplinary process that might have resulted in a written warning. However, I do not consider that it would have led to dismissal and do not consider it appropriate to reduce the Claimant’s compensation on the basis that he would, or might have been, dismissed, absent his protected disclosure.

[173]The Respondent dismissed the Claimant without the slightest attempt to adopt a fair process in circumstances where they have been told by the Employment Tribunal and the Employment Appeal Tribunal that to do so is totally unacceptable. This is a case that manifestly warrants an uplift for failure to comply with the ACAS Code of Conduct of the maximum 25%.

Issues

[1]The Claimant’s losses are to be calculated on the basis of gross total annual salary (including bonus) of £280,000 per annum to 19 April 2021.

[2]The Claimant is not entitled to recover in respect of health-insurance premiums that he has not replaced to date. Health insurance premiums can be recovered for future loss.

[3]There shall be a reconsideration of the ACAS uplift. Once the parties have calculated the sums to which the Claimant is entitled, the parties will have an opportunity to put forward any further submissions on the question of whether the percentage uplift should be reduced, and if so to what extent, having regard to the total compensation to be paid to the Claimant.

The Law

[1]The parties agreed a List of Issues on 29 August 2018. I have decided those issues necessary to determine the key points of principle on remedy and taking account of the manner in which the parties put their cases by the close of proceedings. Evidence The Claimant gave evidence on his own behalf.

[3]The Claimant called:3.1 Simon Birch, Portfolio Manager at Highbridge Capital

3.2 As an expert witness; Andrew Nicolll, Employment Consultant

[4]The Respondents called :4.1 Edward Stubbenhagen, Director of Compensation, Advisory for Capital Markets, Technology Operations and Functions

4.2 As an expert witness; Timothy Mark Carrington The Law Assessment of Loss

[5]Pursuant to section 123 of the Employment Rights Act 1996 (“ERA”), the Tribunal should award a sum of compensation to the Claimant that is: “…just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.

[6]The Claimant is entitled to be put in the position in which he would have been if the wrong had not been committed.

[7]I accept the Respondent’s submission that the assessment of loss is not an exact science; in assessing damages there must be “elements of estimate and to some extent of conjecture”: per Lord Morris in Mallet v McMonagle

[1970] AC 166

who stated at 173: “The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past the court decides upon a balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”

[8]While predicting what would have been can never be an exact science it is founded on an analysis of the evidence. The evidence of the Claimant is important but is not to be accepted without further enquiry: Ministry of Defence v Cannock

[1994] ICR918

at 951B. I accept that there is always a risk that a Claimant may have an overly rosy view of what the future held absent the unlawful actions of the employer. Evidence of what has happened to others in similar circumstances may be significant: Cannock at 951C. As Morrison J put it ““The chances must be assessed sensibly having regard to what happens in real life…”

[9]The burden of proving loss lies on the Claimant: Newton Tool Co v Tewson

[1972] ICR 501

. The burden of establishing any unreasonable failure to mitigate loss lies on the Respondent: Wilding v British Telecom

[2002] ICR 1079

. There is a difference between acting reasonably and not acting unreasonably: Cooper Contracting v Lindsay [2016] ICR D3.

[10]The word “attributable” in s.123 ERA implies that there has to be a direct and natural link between the losses claimed and the conduct of the employer in dismissing. The phrase “just and equitable” requires the Tribunal to look at the conclusions it draws from its quantification of losses and what is attributable to the conduct of the employer, and then determine whether, in all the circumstances, it is reasonable to award: Simrad Ltd v Scott

[1997] IRLR 147

[11]Morison J stated in Ministry of Defence v Cannock (at 950H): “We suggest that tribunals do not simply make calculations under various different heads, and then add them up and award the total sum. A sense of due proportion involves looking at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed.”

[12]If there is a realistic chance that the Claimant would have been dismissed fairly or resigned, this must be factored into the calculation of loss: Polkey v Dayton

[1988] ICR 142

, Wardle v Credit Agricole Corporate and Investment Bank

[2011] ICR 1290

; Cherry Tree Day Nursery v Fanstone

UKEAT/0273/07/DM

[13]Elias LJ observed in Wardle at paragraph 65 that it is unlikely that an employee would voluntarily leave a job otherwise than for similarly paid employment as employees rarely voluntarily leave a job for lower pay. They are even less likely to resign without any job to go to, although this does happen.

[14]In Software 2000 v Andrews

[2007] ICR 825

, it was held at paragraph 54:- “The following principles emerge from these cases.(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4) Whether that is the position is a matter of impression and Judgement for the tribunal.

[15]In analysing the counter factual one is considering what the position would have been had the employer appreciated their obligations and acted lawfully: see (in the context of unlawful imprisonment) Parker v The Chief Constable of Essex Police

[2018] EWCA 2788

(Civ) and the analysis of R (Lumba) v Secretary of State for the Home Department

[2011] UKSC 12

[16]Future loss of earnings should normally be assessed up to the point when the Tribunal estimates that the employee will obtain a job at an equivalent salary: Wardle Per Elias J at para 51: “…in my view the usual approach, assessing loss up to the point where the employee would be likely to obtain an equivalent job, does fairly assess the loss in cases – and they are likely to be the vast majority – where it is at least possible to conclude that the employee will in time find such a job.”

[17]In Griffin v Plymouth Hospital NHS Trust

[2015] ICR 347

Underhill LJ explained the assessment at paragraph 9: “At the risk of spelling out the obvious, that is not a finding that it was more probable than not that the Claimant would find a job after precisely one year. Rather, it is an estimate, made on the assumption that the Claimant continued to make reasonable efforts to mitigate her loss, of the mid-point of probabilities”

[18]The compensatory award is intended to compensate the employee for loss which flows from the unlawful dismissal and is not a penal award against the employer: Morgans v Alpha Plus Security Ltd

[2005] ICR 525

[19]However, if the evidence established that the employee genuinely has been robbed of his career in the sense that there is no real prospect of a Claimant obtaining another job, particularly where stigmatised by the actions of the employer, full career loss damages may be appropriate: Chagger v Abbey National

[2010] ICR 397

(CA). Expert Evidence

[20]Expert evidence may be of assistance in assessing loss. However, its use should be limited to where it really is necessary. I have found assistance in considering the appropriate role and extent of expert evidence by considering the provisions of Rule 35 CPR. Rule35.1 provides: “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.” Rule 35 states that the expert’s duty is to the court and Rule

35.2 provides “This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.” Rule 35.10 requires an expert report to comply with Practice Direction 35. Paragraph 2 of the Practice Direction provides: “2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. 2.3 Experts should consider all material facts, including those which might detract from their opinions.”

[21]In Kennedy v Cordia (Services) LLP

[2016] 1 WLR 613

it was held at para. 50: “The skilled witness must demonstrate that he or she has the relevant knowledge and experience to give either factual evidence, which is not based exclusively on personal observation or sensation, or opinion evidence”. Health Insurance

[22]I accept Mr Craig’s submission that where health insurance has not been replaced the cost cannot be recovered as past loss: although it can be recovered as future loss: Knapton v ECC Card Clothing Ltd

[2006] ICR 1084

. ACAS Uplift

[23]In assessing an appropriate figure for the ACAS uplift the Employment Tribunal may after assessing the blameworthiness of the Respondent’s conduct have regard to the overall figure for compensation to ensure that the sum awarded is not excessive, having regard to the types of sum awarded for matters such as injury to feeling: Wardle v Credit Agricole at paragraphs 27-9. Res Judicata and Reconsideration

[24]The principle of res judicata generally prevents issues that have been finally determined from being re-opened: Thoday v Thoday

[1964] P 181

[25]The Employment Tribunal has power to reconsider its decisions pursuant to rule 70 of the Employment Tribunal Rules 2013 which provides: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any Judgement where it is necessary in the interests of justice to do so. On reconsideration, the decision ('the original decision') may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[26]The provision was considered by Lord justice Elias in Ministry of Justice v Burton and another

[2016] ICR 1128

where he held: “21 An Employment Tribunal has a power to review a decision where it is necessary in the interests of justice: see rule 70 of the Employment Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J pointed out in Newcastle upon Tyne City Council v Marsden

[2010] ICR743

, para 17 the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials

[1994] ICR 384

Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review. In my Judgement, these principles are particularly relevant here.”

[27]However, reconsideration is not limited only to “exceptional circumstances”: Newcastle Upon Tyne City Council v Marsden

[2010] ICR 743

, at para. 16. Findings of fact and analysis of likelihood of events

[28]After completing a degree in economics at Sussex University, aged 21 or 22, the Claimant joined Chemical Bank (now JP Morgan) in June 1990 as a graduate trainee in the Capital Markets Division. He became a Vice President by age 24.

[29]In 1995 the Claimant joined NatWest Markets as a senior trader. However, the job did not work out as he expected and, in the summer of 1995, he left to join Citibank as a Senior Trader in the European Currency Trading Group. Subsequently, he became head of Spot EM Trading.

[30]In 1998, the Claimant left Citibank to join Barclays to run the London non-G7 FX Trading Team. This was the first time he worked with Mr Birch. He states he was extremely successful during this period. In the Claimant’s witness statement for the liability hearing he stated that this was when he first earned more than £1 million a year. The implication was that he regularly earnt more than £1 million a year thereafter. That was not the case. However, the Claimant was also paid approximately £1 million in his last full year at Barclays.

[31]In 2002 the Claimant left Barclays to set up a hedge fund, Magi Capital, together with former colleagues. The venture was not economically viable and was closed.

[32]In March 2004 the Claimant was hired by Simon Birch (who had by then left Barclays) and Chris Allington (with whom he had worked Chemical Bank) to join Merrill Lynch in the Emerging Markets Division. He eventually lead the FX Proprietary Trading Group. The group was disbanded, resulting in his redundancy in around January 2006. That was the last time that Mr Birch worked with the Claimant.

[33]The Claimant was at his most successful while at Barclays and Merrill Lynch.

[34]In the spring of 2006 the Claimant was recruited again by NatWest Markets as a Senior Trader in their Propriety Trading Group. The group was closed and the Claimant was made redundant.

[35]In January 2007 the Claimant joined Credit Suisse to run a Cross-Product EM Group. The Claimant moved to Zürich in about April 2008. I was provided with figures for the Claimant's earnings form this period. The figures for the period during which the Claimant worked at Credit Suisse are a little difficult to follow because he started this new employment and subsequently moved to Zürich.

[36]For the 2007 bonus year. there appears to have been no discretionary bonus but a sign-on bonus of $250,000.

[37]In 2008, after the move to Zürich, the Claimant was awarded total compensation of $1,060,00. In Stirling his total for the year was a little over £570,000.

[38]In early 2009 the Claimant decided to leave Credit Suisse. He stated that he made his entire budget within the first five weeks of the year and was uncertain how any profit he made thereafter would be treated for bonus purposes. His bonus for 2009 is difficult to follow. The Claimant in his supplementary witness statement suggested that he earnt CHF 1,293,498. However, that took into account a cash retention award from 2008 of CHF 609,741 which was not paid until February 2009. The Claimant does not appear to have been paid a discretionary bonus in 2009. The Claimant did receive CHF 535,000 as a result of a settlement agreement. I conclude that the payment included an element to buy out the bonus to which he would have been entitled to.

[39]In June 2009 the Claimant set up and worked for a family company, Wedderburn AG.

[40]In August 2010, the Claimant joined Standard Chartered working in Dubai as a Senior Propriety Trader. In 2010 Claimant did not receive a discretionary bonus from Standard Chartered. His annualised total pay was approximately £175,000.

[41]In April 2011 at the Claimant moved to Standard Chartered in London. He was awarded no discretionary bonus. His total pay was approximately £195,000.

[42]The Claimant was approach while working with Standard Chartered to join Jefferies. At about that time the Claimant was also approached by Simon Birch to work as an EM trader at Morgan Stanley, but said that he was not able to do so as he had already agreed to join Jefferies.

[43]The Claimant joined Jefferies on 16 April 2012. The Claimant was not awarded a bonus for 2012. His total pay was £125,128. The Claimant suggested in his witness statement that the relatively low income was because of losses made by others, but accepted in cross examination he had not, himself, made that much money.

[44]In 2013 Claimant was paid a discretionary bonus of £100,833, and had a total remuneration package of £300,833.

[45]The Claimant and was not paid a bonus by Jefferies in 2014. His total remuneration was about £200,000.

[46]The venture for which the Claimant was engaged at Jefferies was not successful and towards the end of 2014, or early 2015, the Claimant started considering alternative options. He attended interviews with BNP, where Mr Birch now worked. In his oral evidence the Claimant's stated that the interviews were towards the end of 2014. His evidence was that he was made a verbal offer of employment at the end of 2014 that he did not at that stage accept, but had no reason to believe would be withdrawn.

[47]Subsequently, the Claimant states that another more formal offer was made in early 2015, by which stage he had already agreed to join the Respondent. The main reason the Claimant chose to join the Respondent was because he considered that the Respondent had a clear regulatory record. The Claimant's contention in his witness statement that he did not join BNP because he had already shaken hands to join the Respondent is misleading in that on his evidence, which I accept, there had been an earlier offer that he had not taken up because he wished to join a bank with a clear regulatory record, rather than because he had agreed on a move to the Respondent.

[48]The period that the Claimant worked for Standard Chartered and then Jefferies was a low point in his career. He accepts that he made a poor decision in joining Jefferies. I consider that his earnings for this period are less than he might have earned had he been working at another bank and do not represent his true market value.

[49]The Claimant eventually left Jefferies on 1 June 2015 and commenced employment with the Respondent on 15 June 2015 as Director, Emerging Markets FX Trader. In his statement the Claimant states that he was looking for a stable employer where his experience and skills would be appreciated and where he could earn a good living for a long period of time. He placed considerable emphasis on the fact that the Respondent had a clean regulatory record when he joined. I accept that the Claimant was particularly concerned about the regulatory problems that were facing many major banks and wished to work out the remainder of his career at a bank where regulatory issues were unlikely to be a problem. The key question is how long that career was likely to last.

[50]The Claimant only worked for the Respondent for part of the 2015 bonus year; which ended in October 2015, the bonus being paid in December 2015.

[51]Mr Stubbenhagen set out the bonuses paid to traders at a similar level to the Claimant in FX together with the independent benchmarking undertaken by an external contractor for remuneration purposes, as follows:

[52]The Claimant was paid fixed remuneration of £200,000. Mr Stubbenhagen estimated the Claimant’s bonus as £130,000 assuming that the Claimant would have achieved revenue at the same average monthly rate as he had achieved over the part of the year he was employed. This gave a figure of £330,000 for total remuneration. I accept that is the best way of estimating bonus; although I accept that the Claimant’s revenue was patchy; tending to result from an occasional very successful large trade with occasional significant losses. The Claimant was a little below median earnings for benchmarking purposes. Taking into account the fact that there is likely to be a comparatively slow start in a trading role the Claimant’s likely market value for future years on a change of employer would be likely to be in the region of median earnings. The median earnings for his role was slightly higher than for two of his colleagues; and significantly higher than one. I consider that median earnings for the highest earning of the Claimant’s colleagues provides a good starting point for assessment of the Claimant's likely earnings in a good year with the Respondent or, indeed, if he moved to another bank, the Claimant having reestablished himself in a more mainstream trading role.

[53]The Claimant's employment terminated on 18 November 2016.

[54]After his dismissal the Claimant spoke with James Ludlam (a senior Emerging Markets Trader) who told him that it was unlikely that he would be able to obtain a trading job because of his dismissal and before any litigation was resolved. The Claimant had a further conversation with Mr Ludlam after his appeal who again stated that it would not be possible to advance the Claimant as a candidate for a trading role until the litigation was over. The expert witnesses agreed that there was no realistic chance of the Claimant obtaining a trading role before the litigation was completed. I accept that evidence. It was not challenged by the Respondent.

[55]Mr Stubbenhagen in his first and second witness statement considered the bonus that the Claimant would have been likely to have been paid had he still been in the Respondent's employment in December 2016. He sets out the initial recommendations and actual bonuses paid to the other FX traders as follows: 56.

[57]Mr Stubbenhagen notes that overall there was a 50% reduction in bonus as against that originally recommended. The Claimant was originally recommended for a bonus of £250,000; reducing that by 50% would suggest a bonus of £125,000.

[58]However, Mr Stubbenhagen makes it clear that bonuses are calculated by application of a compression ratio applied to revenue generated. The original bonus recommendations would have been equivalent to a compression ratio of 11%. The bonuses eventually awarded were based on a compression ratio of 7%. Applying this compression ratio to the proposed bonus for the Claimant would have given a bonus in the region of £160,000.

[59]Mr Stubbenhagen states in his second witness statement that he made an error in calculation of the Claimant’s likely bonuses for 2016 because he failed to take into account the fact that two of those awarded bonuses had a reduction because they had been found guilty of misconduct by using offensive language in email communications. Once that was taken into account there was a smaller percentage reduction form the original recommendation (46.3%) or, on the more appropriate method of calculation, a higher compression ratio. One would assume that would have led Mr Stubbenhagen to conclude that he had slightly underestimated the bonus that the Claimant would have been paid for 2016. Surprisingly, his second witness statement is relied upon to support the contention that the Claimant would have received a lower bonus. Mr Stubbenhagen achieves this result by either applying a percentage reduction leading to a bonus of £135,000 (this approach would have led to a bonus of £125,000 before the correction but was not his preferred approach to calculating bonus in his first statement). Alternatively, he applied a slightly higher compression ratio, but assumed that the Claimant would not have added any further revenues up to the end of the bonus year (as opposed to his previous approach of averaging across the year): giving a bonus of £92,500. Mr Stubbenhagen does accept that if he annualised likely revenue this would give a likely bonus for the Claimant of about £190,000. Overall, I conclude that the best approach is to assume that the Claimant would have been in a similar position to his two colleagues who had a reduction their bonus because of their misconduct and that therefore the figure of £160,000 is the appropriate figure for the bonus that the Claimant would have been awarded for 2016. That was the figure originally put forward by the Respondent and was accepted by the Claimant. I accept that it is the sum that he would have been paid. This would give total remuneration for the Claimant of £360,000 in 2018.

[60]In the previous year the Claimant had the highest benchmark median earnings. The above figure would broadly fit with the benchmark median earnings for the comparators for 2016:

[61]In early 2017 the Claimant states he spoke to James Ludlam who said he was engaged in an active search for a senior emerging markets trader for Namura, but although the Claimant would have been his choice for the role. he could not be put forward because of the litigation. In fact the litigation had not yet started but the Claimant had been dismissed for cause and the litigation was contemplated. The Claimant states he spoke again with Mr Birch in early 2017. Mr Birch told him that his hiring managers were focused on risk minimisation and so his whistleblowing would be likely to render him unsuccessful in any application. This fits with my finding that there was no realistic prospect of the Claimant obtaining a trading role while the litigation was ongoing.

[62]Mr Birch states that he would have liked to have been in a position to engage the Claimant in 2016 or 17. If had been able to recruit the Claimant he states that the likely fixed remuneration would have been £300,000 with a guaranteed bonus in the region of £300,000 and the possibility total bonus in the region of £600,000; being a maximum level of two times annual salary. I note that Mr Birch has not worked with the Claimant since 2006 when his career was at its height. He is a friend who has a generous view of the Claimant's abilities. However, before any appointment to BNP the Claimant would have had to be interviewed by other members of the team. I consider that had the Claimant moved to BMP there is no realistic prospect that there would have been any substantial increase in the Claimant's remuneration over that that he earned with the Respondent. I consider that the total remuneration that the Claimant would have been paid had he remained at the Respondent and received his 2016 bonus, of £360,000, is the best reflection of his market value and likely starting salary (including and guaranteed or variable bonus) if moving banks at that time, taking into account that fact that if he had moved he might have been paid rather less or rather more.

[63]The Claimant provided his first schedule of loss on 16 June 2017. He contended that he would have remained employed by the Respondent as a trader to the end of his career at 68 with fixed income of £200,000 and annual bonus of £400,000.

[64]In July 2017 Claimant sent out a first batch of emails to a number of banks seeking roles as a trader. The emails were in a generic form that made it extremely unlikely that they would result in an offer of employment. the Claimant had not identified the relevant manager of the appropriate department. He did explain why he would be a good fit for any specific roles. In circumstances in which most appointments involve a degree of word-of-mouth and the use of head hunters the applications had no reasonable prospect of resulting in the Claimant obtaining a role. However, for the reasons set out above, I accept that there was no realistic prospect of the Claimant obtaining a trading roles while the litigation was ongoing.

[65]Mr Birch left BNP on 20 October 2017 and thereafter would not have been available to champion the Claimant.

[66]Mr Birch stated BNP increasingly operate an Anglo-Saxon model in which if employees do not achieve the revenues expected of them they are dismissed.

[67]On 30 November 2017 the Claimant served his second schedule of loss in which he approached the calculation in a similar manner to his first schedule.

[68]The Claimant served his third schedule of loss on 22 March 2018. He again adopted a similar approach to loss.

[69]The liability hearing took place between 23 April and 10 May 2018.

[70]In June 2018 the Claimant sent out a further generic email, which again was unlikely to secure him a trading job.

[71]On 6 July 2018, the Claimant served his fourth schedule of loss, again adopting similar approach.

[72]The Claimant included an exchange of emails in July 2018 in which he sought to obtain practice as a teacher, referring to his wish to undertake Teach First. It is notable that he put a great deal more effort into the exchanges about seeking teaching experience than he did in his attempts to find trading roles. I conclude that the Claimant has been considering the possibility of a move into teaching, when his career in banking comes to an end, for a considerable period of time.

[73]On 28 August 2018 the Claimant applied to BNP and others, now naming specific contacts. This has not resulted in any contacts from the banks. However, it is common ground, and I find, that that the Claimant has no realistic prospect of obtaining a trading role while still engaged in litigation.

[74]On 1 November 2018 a recruiter, Mr Armon-Jones sent an email to the Claimant. He suggests that there is a current shortage of experienced traders in emerging markets and that he has been able to place experienced people with total packages between £650,000 and £980,000, with one trader on a total package of £2 million. It does not appear that he has been shown Claimant's historical earnings. While I accept that the market for emerging markets traders is brighter than suggested by the Respondent’s witnesses, I do not accept that the Claimant’s market value is at this level, based on the trajectory of his career and historic earnings together with the benchmarking evidence – form all of which I assessed his market value as of the end of 2016 as set out above.

[75]On 26 November 2018, the Claimant served his final schedule. He changed his position contending, in the alternative, that if he had obtained a bonus of “only” £160,000 from the Respondent for 2018 he would have been likely to leave them and move to a competitor bank where he would have been likely to receive annual bonuses in the region of £450,000, or above, as he had previously claimed he would have earned had he remained with the Respondent.

[76]The fundamental issues on remedy in this case are the determination of what the Claimant's likely career and earnings would have been had he not been unfairly dismissed for making protected disclosures and what the future is likely to hold should he take proper steps to mitigate his loss. That involves an overall consideration of the evidence to determine a trajectory that would provide an appropriate level of compensation, accepting that this is not a fact finding analysis as conducted when determining historic facts, but is an assessment that is designed to allow for the fact that there might have been alternative scenarios involving the periods of loss ending earlier or later; and/or higher or lower earnings.

[77]In carrying out the analysis I obtained very little real assistance from the expert evidence. When I conducted a telephone Preliminary Hearing for Case Management on 2 November 2018 I expressed my considerable reservations as to whether expert evidence would be of assistance in this case, Mr Craig and Ms D'Souza told me that they agreed that expert evidence was necessary and persuaded me that I should permit it. I do not criticise them for the fact that they did not specifically direct me to CPR 35, and the requirement upon judges to limit expert evidence to that strictly necessary. I assume that they took that for granted. However, I do, on reflection, regret the fact I was not more robust and require more convincing that expert evidence was necessary.

[78]The evidence of Mr Nicoll was fundamentally undermined by his acceptance in cross-examination that the approach he adopted was to base the majority of his conclusions on information that had been given to him by the Claimant, or individuals he had been introduced to by the Claimant, accepting at face value anything he was told unless he regarded it to be nonsense, absurd or ridiculous; in which case he would express his deep scepticism, but leave it in the report as material for the Claimant to “argue” the case, because it might be accepted by the judge. Most of Mr Nicholl’s report amounted no more than him repeating what he had been told by the Claimant, and those the Claimant had introduced to him; accepting it all with no serious analysis. This led him to conclude that that the Claimant would have worked as a trader to 68 or 70, when the objective evidence shows that would be extraordinarily unusual. Mr Nicoll demonstrated no real expertise in banking.

[79]Mr Carrington's evidence was somewhat more impressive. His specific expertise is about computerised or “algorithmic” trading and the effect that it has had on FX trading in the major currencies, from which he infers it is likely to reduce the requirement for EM FX traders in the future. However, his evidence was severely undermined by the fact that he did not set out the alternative views, although he accepted that his view about the likely speed of a move to algorithmic treatment in EM FX trading was not universally held. Despite stating that he had read CPR 35 he did not comply with his duty to explain the competing views and explain why he analysed the matter as he did. His evidence that algorithmic trading has become increasingly important in major currency FX trading added little to the objective evidence that a number of the main traders in major currency FX now only use algorithmic trading. It did not need expert evidence to establish that there are more challenges for algorithmic trading in EM markets, because of the lesser prevalence of fully electronic trading, limited opening hours for markets in certain EM Currencies and a tendency for greater volatility caused by unexpected political events: or to establish that, despite these challenges, it is likely in the next few years algorithmic trading will become increasingly important in EM FX trading. The usefulness of Mr Carrington evidence as to salaries in the FX market was reduced by the fact that he retired in September 2015.

[80]Taking a step back and looking at the evidence as a whole; I conclude that the Claimant's losses should be calculated on the basis that he would have continued as a trader until April 2021 (when he will be 53) and that he would have earned the market fixed salary that I concluded he merited as of December 2016: i.e. fixed annual remuneration of £200,000. While I concluded that the market value for bonus purposes was £160,000 at the end of 2016, that represents what I consider would be the sort of sum that might be guaranteed on a move of banks. Total earnings of £360,000 would represent a good year for the Claimant on a historical basis. The Claimant’s history suggests that bonuses varied with there being a significant number of years when he has not earned any bonus. I apply a discount of 50% to average out likely bonus over the period of loss giving an annual figure of £80,000 and therefore total annual remuneration during the loss period of £280,000 per annum. I conclude that the Claimant’s losses should end on 19 April 2021, his 53rd birthday.

[81]I adopt this calculation to take into account the full range of possibilities; in particular that his career as a trader might have been longer or shorter and that he might have earned more or less; and to take into account the possibilities of his leaving the Respondent in the various circumstances identified as possibilities by the Respondent, of moving as a trader to an equivalent bank and the small chance of him leaving the Respondent and not finding equivalent employment lasting up to April 2021.

[82]The Respondent does not allege that there has been any failure by the Claimant to mitigate his loss to the date of the remedy hearing, save that it is contended he should have taken up the opportunity of a move to Namura that was raised by Mr Ludlam in early 2017. The Claimant suggested in his witness statement that he was precluded from taking up the opportunity because he was engaged in litigation with the Respondent at the time. In fact, the litigation had not yet started. The Respondent contends that the Claimant should have given up his proposed litigation and taken up the opportunity with Nomura. I accept the Claimant evidence, on cross-examination, that the opportunity could not be taken up because he had been dismissed for cause and litigation was in contemplation. I do not consider it was unreasonable of the Claimant not to be prepared to give up the proposed litigation to establish that he had been dismissed for making a public interest disclosure. I do not consider that whistle blowers should be required to keep silent and not litigate in order to mitigate their losses.

[83]I next consider the period for which the Claimant would have been likely to remain as an EM FX trader. I accept that it is unusual for traders to continue in that role into their 50s. In the experts’ joint statement it is stated that Mr Nicoll was content to agree with Mr Carrington that the majority of traders do not continue in the occupation into their 60s and most have withdrawn by their mid50s. The sentence is a little unclear, but I take it that Mr Nicolle accepts that most traders have left trading by their mid-50s. The Respondent’s evidence shows that in the whole of the Respondent's UK FICC business the average age of the 193 employees is 38, with the oldest employee in the entire business being 63. The average age of traders is 35. The oldest traders are both 51. There 69 traders. Mr Stubbenhagen’s evidence as to the age at which traders generally retire is consistent with the evidence of Mr Carrington. It was also consistent with the evidence set out in paragraph 22 of the Respondent's closing estimating the age at which various employees referred to by the Claimant had left the Respondent. However, I am prepared to accept that the Claimant would have continued trading longer than is the norm. He was unusually committed to the role of being a trader. He obtained great job satisfaction from trading. Although he at one stage referred to having lost his pleasure in making money, I do not consider that reflects his general approach, which was one in which he was very committed to trading as long as he reasonably could. I consider he planned to see out his time in banking as a trader.

[84]The difference between the parties reduced considerably during the hearing. In closing the Claimant’s case was that the Claimant would been likely to have continued as a trader for at least five year; when he would have been 53, as opposed working as a trader to 68, as had been the claim in the Claimant's first four schedules. This was a much more realistic way of putting the case and I accept it is broadly accurate.

[85]I accept that there are changing in working patterns that mean that traders may work against this longer than they have done previously. I have sought to avoid falling into an ageist stereotypes by assuming people cannot trade into their 60s or beyond. However, the evidence shows that very few do. That may be, in part, because of the early starts and considerable stresses in the role. Many traders choose either to retire from banking or to change jobs before they are 50.

[86]I fix on the date of loss of the loss ending in April 2021, taking into account the possibility that the Claimant might have ceased trading earlier or he might have continued rather later because of his deep commitment to trading. I think there is a real possibility he might have continued trading beyond that age; but I offset that possibility against the various possibilities that might have resulted him leaving the Respondent earlier; and the small possibility that he would have done so and not have obtained a similar role in an equivalent bank.

[87]The Claimant might have been dismissed for timekeeping or resigned after receiving a further warning for timekeeping. The Respondent accepted in closing submissions that the Claimant would have received a first warning had been treated fairly and not dismissed because of making protected disclosures. It should be remembered that Mr Adamson gave evidence on behalf of the Claimant. Despite the terms of his email of 27 July 2016 in which he suggested that there was a breakdown of trust, Mr Adamson's evidence was that he did not believe the Claimant should be dismissed, but disciplined. He stated he was going along with the approach of senior management who had turned against the Claimant . In any event, even if Mr Adamson had really felt there was a breakdown in trust, had the matter been dealt with fairly, and HR had been permitted to go along with their initial recommendation for a disciplinary process, the Respondent's position is that there would have been a first warning. Mr Adamson would have had to accept that. I consider that the likelihood is that the Claimant’s timekeeping would have improved once he realised his career in trading was at risk and would not have been likely to result in dismissal before April 2021. An improvement in timekeeping would have resolved the Claimant’s difficulties with Mr Adamson.

[88]There is also a possibility that the tendency for the Claimant to fall out with colleagues might have resulted in him leaving earlier by dismissal or resignation. However, in circumstances in which the Claimant's disclosures would have been taken seriously, as the Respondent suggested it was going to do, it is likely that the Claimant would have felt much less isolated in the workplace and I do not consider that there is a substantial likelihood that he would have been dismissed, or resigned, as a result of interpersonal relationships before April 2021.

[89]I consider that it is unlikely that there would have a been a reorganisation, because of a move a computer trading, before April 2021 that would have resulted in the Claimant’s redundancy.

[90]I do not accept the Claimant’s evidence that he would have left the Respondent if he received a bonus of “only” £160,000. Such a bonus would have resulted in overall remuneration that represented a good year for him and the Claimant was keen to remain at a bank that he considered had low regulatory risk.

[91]Even if the Claimant had left the Respondent before April 2021, I consider it is most unlikely that he would have done so without obtaining a job at a competitor. Mr Birch provide support for the contention that the Claimant was well thought of and that that there would have been possibilities to work at banks such as BNP. If the Claimant had moved to another bank I consider that his earnings would have likely to have remained at the same level that he would have achieved with the Respondent; i.e. fixed annual salary of £200,000 and average bonus of £80,000. This takes account of the small possibility of much higher earning that Mr Ludlam suggest are available and allows for the possibility that bonus might have been higher in some years and lower in others. While I accept that there has been some decrease in earnings for his colleagues at the Respondent I consider had the Claimant’s earnings fallen substantially below overall remuneration of £280,00 he would have been likely to obtain an opportunity with an alternative bank where he could earn such sums.

[92]I consider that the loss should end in April 2021. I consider that taking proper steps to mitigate his loss the Claimant should be able to put himself back into the position he would have been had he remained with the Respondent, or moved to a competitor bank in a trading role before 2021. That is when I have concluded he would have ceased trading. That would have put him at very top of the age range when people stop trading. It was the basis upon which the Claimant’s final submissions were made. After ceasing trading I consider it is most likely that the Claimant would have retried from baking. He would have had a few good years of salary before retiring. Trading was his real calling and I do not consider it is likely that he would have wanted to move into sales.

[93]Traders commonly move into new careers once their trading days are over. I consider the likelihood was that the Claimant would have retired from banking when he ceased trading and would have looked for a new challenge; the most likely being as a teacher. The enthusiasm that is shown in his email exchanges seeking to obtain teaching experience contrast with the lackadaisical approach he took in his email enquiries about banking roles.

[94]If the Claimant takes proper steps to mitigate his loss by April 2014 he should be able to be in a similar teaching role to that he would have been in had he retired from banking on ceasing to be a trader in April 2021.

[95]Alternatively, there is some possibility that the Claimant would have sought a sales role after ceasing to work as a trader. Application for such roles would have been unrealistic whilst the litigation was ongoing. However, once the litigation has ceased the Claimant should be able to find a sales role by April 2021 , which would mean that he would not sustain additional losses. However, I consider it is unlikely he will take that path.

[96]I accept the Respondent's contention that the Claimant is not able to claim compensation in respect of health-insurance that he has not replaced, but is entitled to such sums in respect of future loss.

[97]In respect of the ACAS uplift, I consider that this is a matter where reconsideration is appropriate. I appreciate that reconsideration will be rare where a party has failed to put forward an argument that was available, but overlooked. However, I consider that, in seeking to deal with matters in an effective manner, both the Claimant’s and Respondent’s Counsel at the liability hearing considered that it would be an effective use of tribunal time to determine the level of the ACAS uplift at the same time as liability as it turns on the extent of the Respondent's default in failing to apply a proper disciplinary process. It was considered to be a matter, like contribution, that while being a remedy issue is commonly determined at the same time as liability. The Counsel then instructed by the Claimant and Respondent, and I, focussed on the extent of the default. There was a genuine common mistake in overlooking the fact that there is a potential further step after that initial assessment has been conducted, in assessing the total value of the uplift to ensure it does not result in an excessive windfall for the Claimant.

[98]It was agreed with Counsel that once the above points of principle had been determined the parties would seek to agree the calculation of the sums due to the Claimant, taking into account matters such as grossing up. Once those calculations have been made, I will reconsider the issue of the ACAS uplift on the basis of any further submissions about whether it is appropriate for a smaller percentage to be applied, and if so, what percentage.

The Law

[1]The compensation awarded to the Claimant is increased by 5% because of the Respondent’s unreasonable failure to comply with the ACAS Code of Practice.

[2]The Respondent is to pay the Claimant compensation in the sum of £1,112,956.17(that includes the 5% uplift). The Claimant’s application for costs is refused.

[1]The liability hearing of this claim took place from 23 April to 10 May 2018. In a judgment sent to the parties on 21 May 2018 the Tribunal (EJ Tayler) found that the Claimant had been unfairly dismissed under section 103A of the Employment Rights Act 1996, that any award of compensation should be reduced by 25% because his conduct contributed to the dismissal and that it should be subject to an uplift of 25% because of the Respondent’s failure to comply with the ACAS Code of Practice.

[2]The remedy hearing took place on 4 – 7 December 2018. In a judgment sent to the parties on 1 February 2019 EJ Tayler decided that there would be a reconsideration of the ACAS uplift once it was known what the compensatory award was and what the monetary value of the uplift would be. He recognised that it was an error to make a final determination about the uplift without going through that stage. He also held that the Claimant’s losses were to be calculated on the basis of a gross total annual salary (including bonus) of £280,000 per annum to 19 April 2021.

[3]The parties had agreed prior to today’s hearing certain elements of the award to be made. These were a basic award of £718.50, a compensatory award of £793,533.20 before any adjustments and the grossing up of any award.

[4]The only issues that I had to determine in relation remedy were:(a) The percentage figure of the ACAS uplift in light of its total monetary value; and

(b) The final sum that should be awarded to the Claimant having made the necessary adjustments.

[5]In addition, I had to determine the Claimant’s application for costs dated 14 June 2021. The ACAS uplift

The Law

[6]Section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULR(C)A 1992”) provides, “(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that –(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies;

(b) the employer has failed to comply with that Code in relation to that matter; and

(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%”.

[7]In Wardle v Credit Agricole Corporate and Investment Bank

[2011] ICR 1290

the Court of Appeal considered the uplift for failure to follow procedures relating to dismissals under a different legislative provision, namely section 31(3) of the Employment Act 2002. Under that section if the Tribunal found that there was noncompletion of the statutory procedure then in force and that the non-completion was wholly or mainly attributable to the employer, it had to increase any award by 10% and could, if it considered it just and equitable, increase it by a further amount up to 50%. Elias LJ stated, “The size of the award ought in an appropriate case to be a factor informing the tribunal’s determination of what is just and equitable under that provision. No doubt in most cases where the compensation is modest it will not affect the tribunal’s analysis. But in other cases it can be a highly material consideration.” He accepted that in a case where the award was large, the failure to have regard to that factor would be an error of law. Although Elias LJ accepted that the award under that section had a significant punitive element he thought that it would be wrong to see the uplift purely in penal terms. He said that the Tribunal was enjoined to start with 10% and that it must then consider whether it was just and equitable to increase that percentage and, if so, by how much. He continued, “In my opinion an increase to the maximum of 50% should be very rare indeed. It should only be given in the most egregious of cases… the mere fact that the employer has ignored the procedures altogether would not in my view just an increase to the maximum, although it would often justify some increase beyond 10%. Once the tribunal has fixed on the appropriate uplift by focusing on the nature and gravity of the breach, but only then it should consider how much this involves in money terms. As I have said, this must not be disproportionate but there is no simple formula for determining when the amount should be so characterised. However, the law sets its face against sums which would not command the respect of the general public, and very large payments for purely procedural wrongdoings are at risk of doing just that … In considering the sort of sum which would be proportionate and acceptable it is, in my view, of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages… I do not suggest that these are entirely analogous situations, but I think that, save in very exceptional cases, most members of the public would view with some concern additional payments following an uplift for purely procedural failings which exceeded the maximum payable for injured feelings.”

[22]In that case, following the Court of Appeal’s rulings on other aspects of the appeal, the parties agreed the amount of compensation payable to the claimant prior to the uplift. Prior to grossing up that figure was £192,361.67, of which £124,177.87 represented the loss that was wholly referable to the dismissal. The Court of Appeal, on the basis of submissions to it, concluded, having regard to the serious and cavalier breaches found by the tribunal, that the appropriate figure for the uplift would be 15%. That would increase the net figure by a sum which was a little short of £19,000. (Wardle v Credit Agricole (No.2)

[2011] IRLR 819

[23]In Acetrip Ltd v Dogra

EAT/0238/18

the ET had awarded an uplift of 25% (which came to £21,158.25) in circumstances where it had concluded that the respondent’s witnesses had made up previous disciplinary warnings and then manufactured the claimant’s dismissal under false pretences. The respondent’s failures to follow the Code of Practice were “manifest and profound.”. The EAT held that the guidance in Wardle applied equally to the uplift under Section 207A in TULR(C)A 1992. The judge said, “It seems to me, on a careful reading of the guidance in Wardle that the absolute value of a given percentage uplift is not something which it is simply permissible to take into account, but something which, in a case where the underlying award is of a significant amount, the Tribunal needs to take into account as a relevant consideration. There is, inevitably it seems to me, a punitive element to an adjustment award under these provisions, because the Tribunal is not simply compensating a claimant for some additional readily identifiable or quantifiable loss that he has suffered. The adjustment is bound, to a degree, to be reflective of what the Tribunal considers to be the seriousness and degree of the failure to comply with the ACAS Code on the employer’s part. However, the fact that it has a punitive aspect to it makes it, it seems to me, all the more incumbent on the Tribunal to consider the absolute value of its award, if that absolute value is likely to be significantly large, and bearing in mind that, in fixing on the amount which it considers just and equitable, the Tribunal must have regard to justice and equity to both parties. In this case the absolute value of the uplift, at 25%, was in excess of £20,000. That is a figure which was certainly of a significantly large amount. Therefore, in not considering the absolute value of this award before it determined the percentage level at which to set it, or, if it did consider it, certainly in not spelling out that it had considered it, and what view it took of it, the Tribunal erred in law on this point as well.”

[24]In Secretary of State for Justice v Plaistow [

EAT/0016/20

] Eady J said, “Although there may be a compensatory element to the uplift (by analogy with the statutory regime under consideration in Wardle, a failure to use the procedures under the Acas Code of Practice may deprive the employee of the opportunity to persuade the employer that dismissal would be inappropriate or unfair), inevitably there is a punitive quality to such an award. The statute might not provide that the uplift is to be expressed in a precise amount but it does require that the ET considers that it is “just and equitable” to increase any award by that amount. It would be neither just nor equitable if, having regard to the actual sums involved, the final figure awarded by way of uplift was entirely disproportionate in terms of both the employee’s loss and the employer’s breach.”

[25]In Abbey National plc v Chagger

[2010] ICR 397

the ET upheld the claimant’s complaints of unfair dismissal and race discrimination and awarded him compensation of £2,794,962.27. It found that there had been a complete failure by the respondent to comply with the statutory dismissal procedure. It reduced the uplift under section 31(3) of the Employment Act 2002 to 2%. Section 31(4) entitled a tribunal to award less than the minimum of 10% if there were exceptional circumstances that would make an increase of that percentage unjust or inequitable. The Court of Appeal held that the amount of compensation could be an exceptional circumstance. Elias LJ stated, “…the uplift operates as an incentive to encourage parties to make use of the statutory procedures. We do not think that Parliament would have intended the sums awarded to be wholly disproportionate to the nature of the breach. In our view, that would have been the effect of awarding even a 10% uplift. There is no definition of “exceptional circumstance” and we are satisfied that it was open to the tribunal to conclude that the size of the award was one such circumstance.”

[26]The Claimant relied on two other cases. The first was Michalak v Mid Yorks Hospital NHS Trust & Others (1810815/2008), a decision of an Employment Tribunal. In that case the ET awarded the Claimant compensation in the sum of £2,075,409 for race and sex discrimination. The Tribunal concluded that were it not for the value of the award it would have had no hesitation in concluding that a 50% uplift was appropriate. It continued, “…were we to impose such an uplift we would, when the tax grossing up calculation is taken into account, effectively be requiring the Respondent to pay an additional sum of about £3,000,000. We agree that that is wholly disproportionate and would not command public respect.” It concluded that 15% was an appropriate uplift because that was the percentage that the Court of Appeal in Wardle had thought was appropriate for “serious and cavalier breaches of the procedures”. That equated to £311,311.35.

[27]The second was a case involving the Respondent in this case – King v Royal Bank of Canada Europe Ltd (

EAT/0333/10

). In that case the Employment Tribunal had awarded an uplift of 50% because of the Respondent’s failure to follow the statutory disciplinary and dismissal procedure that was in place at the time. The Tribunal had heard that the Respondent’s normal practice, which was common in the banking industry, was to call the employee to a meeting and to notify him/her of the dismissal and the reasons for it and to put the employee on garden leave with no right of appeal. The EAT agreed with the Tribunal that such a practice was wholly unacceptable and explained why it was unacceptable.

[28]In Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] IRLR 102

the Court of Appeal identified three broad bands for compensation of injury to feelings and the sums to be awarded in each band. The sums have ben updated since then and the current guidelines are as follows:(i) Top band: £27,400 - £45,600. Sums in this range should be awarded for the most serious cases, such as where there has been a lengthy campaign of harassment on the grounds of race or sex.

(ii) Middle band: £9,100 - £27,400. Sums in this range should be awarded for serious cases which do not merit an award in the top band.

(iii) Lower band: £900 - £9,100. These should be awarded for less serious cases. The Court of Appeal held that only in “the most exceptional cases” should an award for compensation for injury to feelings exceed £45,600.

[29]The Respondent also drew my attention to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases. I list below the guidelines for some serious injuries:(a) Paraplegia - £186,890 - £242,490

(b) Moderately severe brain damage - £186,890 - £242, 590

(d) Mesothelioma - £59,730 - £107,410

(e) Loss of both arms - £205,420 - £255, 930

(f) Very severe facial scarring - £25,000 - £83,050 The Tribunal’s decision

[30]In its liability decision the Tribunal made the following findings - from the start of the Claimant’s employment with the Respondent on 15 June 2015 his time-keeping and, in particular, his not arriving for work at 7 a.m., was an issue that his manager, Mr Adamson, repeatedly raised with him. As early as October 2015 he was warned that it could result in a written warning. The raising of time-keeping had nothing to do with any concerns that he was raising. Poor time-keeping led to the Claimant’s probation being extended in December 2015 to 9 March 2016. On 11 April 2016 the Claimant sent an email in which he said that his colleagues spent less than three minutes completing the annual attestation which showed that they regarded it simply as a box ticking exercise. That email was circulated to some of the most senior managers at the Respondent and the decision taken was to shut down the complaint and not to investigate it. In the course of a grievance that the Claimant had raised he had antagonised people in HR who referred to him as “a particularly odious character” and a “horrid man.” Mr Adamson continued to be frustrated by the Claimant’s late arrivals at work. Mr Monaghan instructed Mr Adamson to document the Claimant’s late attendance as he was beginning to think that it might provide an opportunity to deal with the Claimant whose email of 11 April was making waves. On 27 July 2016 Mr Adamson sent an email at his own behest in which he said about the Claimant, “ His apparent lack of care as to any action being taken and the perception of being ‘above the law’ or one rule for some, another for me, continues to undermine both my position and the desk. Furthermore it utterly negates any positive impact from what he does bring to the table… Much that it thoroughly disappoints me and I feel the Bank will lose valuable intellectual capital the position has fast become untenable. His lack of care has led to a breakdown of trust.” On 16 August a decision was taken by senior managers (Mr Monaghan and Ms Hurrell) and ER and HR (Ms Devitt and Ms Morris) to dismiss the Claimant without going though any procedure. On 17 August Ms Morris typed a document designed falsely to appear as if it had been sent by Ms Hurrell to her and Ms Devitt. That document and a script for the hearing suggested that time-keeping was the reason for the dismissal. On 18 August the Claimant was called to a meeting and dismissed with notice. The reason given for the dismissal was his poor timekeeping. He was put on garden leave. The Claimant appealed against his dismissal. Ms Devitt was obstructive when the Claimant sought documents for his appeal. The person who chaired the appeal did not look into matters thoroughly.

[31]The Tribunal’s conclusions were as follows. The Claimant’s email of 11 April was a protected disclosure. That email was the principal reason for the Claimant’s dismissal. Had it not been for that email the Claimant’s late arrival on 27 July 2016 would have been likely to result in a disciplinary process leading to a written warning. EJ Tayler concluded, “171. I accept that, unusually, the Claimant, notwithstanding the bank’s egregious actions, bears an element of responsibility for his dismissal, because of his persistent failure to attend work on time, despite his repeated protestations that he would do so. I consider that he contributed to his dismissal by 25%. … 173. The Respondent dismissed the Claimant without the slightest attempt to adopt a fair process in circumstances where they have ben told by the Employment Tribunal and the Employment Appeal Tribunal that to do so is totally unacceptable. This is a case that manifestly warrants an uplift for failure to comply with the ACAS Code of Conduct of the maximum 25%” The parties submissions

[32]The Claimant’s case was that, having taken into account the monetary value of the award, the uplift should remain at 25%. That would result in the Claimant being awarded an extra £198,383.30 for the procedural failures in his case. His total award would be increased from £793,533.20 to £991,916.50. When those figures were grossed up, the Claimant would end up receiving £1,329,374.33 (an increase of £270,522.69).

[33]The Claimant argued that the ACAS uplift is gauged in terms of a percentage and not by reference to a band and/or range of possible figures. The guidance given in Wardle about the awards for injury to feelings being “of some relevance” must not be seen in any way to fetter the Tribunal’s discretion to award what is just and equitable in all the circumstances. The Vento bands are of minimum relevance. In both Wardle and Michalak awards of 15% were made. The latter was more comparable to the present case having regard to the levels of compensation; in that case the 15% equated to monetary award of £311,311,35. That suggested that an award of £198,383.30 would not be disproportionate in this case or out of step with the principles laid down in Wardle and their application in subsequent cases.

[34]The Claimant also submitted that the final percentage figure of the uplift needed to do justice to both parties and to reflect the fact that the uplift had a punitive value. It was clear from the Tribunal’s findings that the Respondent had deliberately decided to follow no procedure whatsoever in the dismissal of the Claimant, it had lied throughout the dismissal process and had tried to conceal its action by not recording the dismissal process. Had it followed a fair process, the Claimant would not have been dismissed. Having been dismissed, the Claimant had to fight to clear his name to ensure that he could work again in a regulated industry. Awarding a 25% uplift in those circumstances would command the respect of the public. The decision in King was further grounds for suggesting that a 25% uplift in this case would command the respect of the public. The Respondent had been reprimanded for exactly the same behaviour before and had wilfully failed to change its conduct. There was also a significant public interest element in the whistleblowing carried out by the Claimant.

[35]The Respondent’s case was that the Claimant should not be awarded an ACAS uplift of more than £25,000, i.e. an uplift of 3.15%. if that were awarded the Claimant would receive a total award of £818,533.20, which would be grossed up to £1,092,942.55 (an increase of £34,090.91).

[36]The Respondent’s submissions were that the whole purpose of the last stage was to look at the monetary value of the award when exercising the discretion to award what was just and equitable for a failure to follow the ACAS Code of Practice. The reason for that was that in cases where the compensatory award was large, if the uplift was decided purely on the basis of a percentage it could lead to a very high award for purely procedural failings that would not command the respect of the public. Wardle did not set a tariff of 15% for “serious and cavalier” breaches. In setting that percentage the Court of Appeal took into account that that would increase the award by a net sum which was a little short of £19,000. In Michalak the Tribunal did not correctly apply Wardle and interpreted Wardle as setting down a tariff of 15% for serious and cavalier breaches. In Acetrip the EAT considered that an award in excess of £20,000 for the very serious failures that the Tribunal found in that case was “a significantly large amount”. The awards in Wardle and Acetrip were an indication of the kind of figures that it would be just and equitable to award for procedural failures. Michalak was an outlier.

[37]The Court of Appeal had made it clear in Wardle that very large payments for purely procedural wrongdoings would not command the respect of the general public. An award of about £270,000 would not command the respect of the public and would be regarded as an excessive windfall. Although awards for injury to feelings are not determinative of what would be just and equitable for an ACAS uplift, it is relevant to have regard to them. Both those awards and the amounts awarded for serious personal injuries give an indication of what the public would regards as acceptable for awards for procedural failures. The average/median net pay in the UK was about £25,000. Conclusions

[38]EJ Tayler has already decided that the Respondent’s failure to follow any process in circumstances where it had been previously told by the EAT that that was unacceptable warranted an uplift of 25%. My task at this hearing was, having assessed what the monetary value of that would be, to consider what percentage of uplift it would be just and equitable to award. The Court of Appeal made it clear in Wardle that that exercise has to be carried out because “very large payments for purely procedural wrongdoings are at risk of” not commanding the respect of the general public. In considering that I need to bear in mind that there is a punitive element to the award, it must not be disproportionate, it must be such as to command the respect of the general public and have regard to justice and equity to both parties.

[39]Under the previous regime (section 31(3) of Employment Act 2002) if there was failure to follow the statutory disciplinary procedure the Tribunal had to increase any award by 10% and could increase it up to 50%, unless there was an exceptional circumstance that permitted it to award less than 10%. The awards in Chagger, Wardle and Michalak were made under that regime. It is difficult to reconcile the award made by the ET in Michalak with the dicta of the Court of Appeal in Chagger and Wardle and the awards made in those two cases. Under the present regime (section 207A TULR(C)A 1992) the Tribunal has a discretion to increase any award that it makes by up to 25%. In Wardle the Court of Appeal awarded around £19,000 and in Acetrip the EAT considered that an award in excess of £20,000 was a significantly large amount. If the compensatory award had stood in Chagger the uplift would have been in the region of £55,000 (gross).

[40]It is important for employers to follow the disciplinary procedure as outlined in the ACAS Code of Practice not only because it promotes fairness and transparency, but also because it could prevent dismissals that are procedurally unfair, discriminatory under the Equality Act 2010 or automatically unfair, i.e. for some impermissible reason under the Employment Rights Act 1996. Employers who dismiss for a discriminatory or impermissible reason often try to conceal that by using some other ostensibly fair reason. If they have to follow a transparent process to establish that ostensible reason and to justify dismissal for it, they might not be able to do so. That having been said, the purpose of the uplift is not to compensate the employee for the loss that flows from the discriminatory or unfair dismissal which might or would have been avoided if the procedure had been followed. The compensatory award compensates him for that, and if the dismissal is discriminatory or for an impermissible reason, it compensates him fully for his losses as it is not subject to any statutory cap.

[41]There is a significant punitive element to the award, but unlike the financial penalty that the Tribunal can award under section 12A of the Employment Tribunals Act 1996, it is not paid to a third party but to the employee in question. Therefore, the employee in question benefits from it and receives a sum in addition to the compensatory award which has compensated him for his losses. In considering whether a particular award for purely procedural failures would command the respect of the general public or would be regarded as an excessive windfall, it is necessary to look at the monetary value of that award (the sums involved) and not only at percentage figures. To do otherwise would be contrary to what the Court of Appeal in Wardle and subsequent cases have said that a tribunal must do. If the amount of the uplift is determined in purely percentage terms (without having regard to how much money that would lead to the claimant receiving), it would follow that those who got very large compensatory awards would receive very large awards for the uplift. I consider that the ET in Michalak erred because it did not consider whether an uplift of £311,311.35 would command the respect of the public or would be regarded as an excessive windfall. I do not accept that awards in that range (around £300,000) for purely procedural affairs would command the respect of the public because the employees in question had received very large compensatory awards. I have no doubt that they would be regarded as excessive and disproportionate awards for the employer’s failure to follow the disciplinary procedure. To my mind, the inevitable consequence of what the Court of Appeal said in Wardle is that the higher the compensatory award the smaller the percentage of the uplift is likely to be.

Findings of Fact

[42]It is clear why an uplift in the range of £300,000 would be regarded as excessive, disproportionate and would not command the respect of the general public when one looks at the awards for injury to feelings for discrimination cases and personal injury awards. An award of around £300,000 is over six times the maximum award for injury to feelings which is awarded in the most serious of cases, such as where there has been a lengthy campaign of harassment on the grounds of race or sex. It would be more than is awarded for serious injuries such as loss of both arms, very severe facial scarring, Mesothelioma, severe PTSD, moderately severe brain damage and paraplegia. It is abundantly clear to me that an award for failure to follow procedures that exceeded those awards would not command the respect of the public.

[43]I accept that it is a relevant factor that this Respondent had previously been told in another case that it was totally unacceptable not to follow procedures and that it had chosen to disregard that and repeated that behaviour in this case. Notwithstanding that, for the reasons given above, I do not consider that it would be just and equitable to award an uplift of that would lead to the Respondent having to pay out £270,522.69 and to the Claimant receiving an extra £198,383.80 because of the failure to follow procedures. Having taken into account all the matters set out above, I concluded that it would be just and equitable to award an uplift of 5%. The effect of that would be that the Respondent would have to pay out an extra £54,102.52 and the Claimant would receive an extra £39,676.66 because of the Respondent’s failure to follow any procedure. I consider that those amounts adequately reflect the punitive element of the award, are proportionate, do justice and equity to both parties and would command the respect of the public.

[44]Using the agreed calculations in the schedule of loss, the 5% uplift results in the following figures: Basic award £718.50 Compensatory award before adjustments £793,533.20 An ACAS uplift of 5% £833,209.86 25% deduction for contributory fault £624,907.39 Grossing up ((£624,907.39+£718.50) - £30,000)/0.55 £1,082,956.17 + £30,000 £1,112,956.17 Costs application

[45]On 14 June 2021 the Claimant applied for his costs of £161,223.08 + VAT from the receipt of the Grounds of Resistance until the end of the liability hearing. He applied primarily on the grounds that the Respondent’s defence to his claim had had no reasonable prospect of success but also on the grounds that he had incurred costs through the Respondent’s disruptive and unreasonable conduct of the proceedings.

The Law

[46]Rule 76(1) of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules of Procedure”) provides, “A Tribunal may make a costs or a preparation time order, and shall consider, whether to do so, where it considers that –(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success.”

[47]If the Tribunal wishes to make a costs order in excess of £20,000 the amount has to be determined by way of a detailed assessment carried by an Employment Judge in accordance with the Civil Procedure Rules 1998 (Rule 78(1)(b)). I indicated to the parties that a limited number of Employment Judge at London Central are trained to do detailed assessments and that I am not one of them. It was agreed that I would determine whether the threshold for making a costs or was met and whether I thought it appropriate to exercise my discretion to award costs. If I decided that it was appropriate to award a sum higher than £20,000, a detailed assessment would have to be carried out by another Employment Judge as to what amount should be awarded.

[48]In Radia v Jeffries International Ltd

[2020] IRLR 431

HHJ Auerbach in the EAT gave guidance on how the ET should approach an application seeking the whole costs of the litigation on the grounds that the claim had no reasonable prospect of success from the outset. He said, “It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2, the Tribunal will usually need to consider, whether at that time, the complainant knew this to be the case, or at least ought reasonably to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.” As Sir Hugh Griffiths said in ET Marler Ltd v Roberston

[1974] ICR 72

, “Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle ahs subsided was far from clear to the combatants when they took up arms. We do not therefore attach undue weight to the fact that at the end of a skilful cross-examination on the last day of the hearing the employee was forced to concede that the employers had acted reasonably in dismissing him.” The same principles apply when the application is made by the claimant on the grounds that the respondent’s defence had no reasonable prosect of success from the outset.

[49]In considering an application for costs on the basis of the paying party’s unreasonable conduct of the proceedings, Mummery LJ said in McPherson v BNP Paribas

[2004] ICR 1398

at paragraph 40, “The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by the [paying party] caused particular costs to be incurred.”

[50]Addressing the same issue subsequently in Barnsley MBC v Yerraklava

[2012] IRLR 78

Mummery LJ said at paragraph 41, “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages … from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. I had no intention to give birth to erroneous notions, such as that causation was irrelevant …” Relevant facts

[51]In his claim form presented on 2 March 2017, and amended on 18 September 2017, the Claimant alleged that between 30 October 2015 and 11 August 2016 he made 14 protected disclosures and that the sole or principal reason for his dismissal on 18 August 2016 was the cumulative impact of those protected disclosures. In respect of many of the disclosures he claimed that the same disclosure had been made on multiple occasions to different individuals.

[52]In the Respondent’s response it stated that the Claimant’s employment had been terminated by the Respondent on the grounds of his repeated poor timekeeping and the repeated failure to follow the reasonable and lawful directions of his employer which led to a breakdown in trust. It said that the Claimant’s initial probationary period had been extended because of his repeated failure to arrive for work on time and set out at paragraphs 13 – 18 the numerous occasions on which Mr Adamson had raised time-keeping issues with the Claimant, culminating in the email of 27 July 2016 (see paragraph 30 (above). It denied that the Claimant had made protected disclosures or that they had been the principal reason for the dismissal.

[53]The Claimant did not have two years’ service and, therefore, the onus was on him to establish that the sole or principal reason for his dismissal was that he had made the protected disclosures.

[54]The Claimant’s witness statement was 98 pages long. A large part of the Claimant’s witness statement (almost 50 pages) was devoted to the 14 protected disclosures and the Claimant’s view that many actions that happened, such as the extension of his probation and the raising of various concerns, was because of the protected disclosures that he had made. Although the Claimant was no longer pursuing complaints of having been subjected to detriments because he had made protected disclosures, it was necessary for the Respondent and the Tribunal to deal with them because it was evidence from which the Tribunal could conclude that the Claimant had been dismissed for making protected disclosures. The Respondent’s witnesses also had to deal with those protected disclosures in its evidence.

[55]The Claimant’s case, as was said several times in closing submissions on his behalf, was that the cumulative impact of the protected disclosures was the principal reason for his dismissal. The Claimant’s closing submissions comprised 66 pages. 33 of them deal with the 14 protected disclosures and set out in respect of each one why it amounted to a protected disclosure. The Respondent disputed that 13 of the alleged disclosures were either made as alleged or amounted to protected disclosures. The exception was the email of 11 April 2016 which the Respondent treated as a whistleblowing complaint. The detail of the alleged protected disclosures and why they did not in fact constitute such disclosures was dealt with in a separate annexe to the Respondent’s closing submissions. Liability Judgment

[56]The Tribunal found that the email of 11 April 2016 was a protected disclosure. It did not find that the Claimant had made any other protected disclosures. The Tribunal found that the Claimant had repeatedly raised concerns about the Global FX Sales and Trading Policy (protected disclosures 1 and 2) and that he was not alone in raising those concerns. The Tribunal found that his managers were concerned that “the Claimant was expressing himself in excessively forceful language and displaying antagonism to regulators”, the concern “was about the tone rather than the content of Claimant’s contributions to the discussions about the new policy” and that when Mr Adamson told him that he was putting people’s noses out of joint that was “a reference to the forcefulness with which the Claimant was raising his concerns more than with their content.” Several of the Claimant’s alleged protected disclosures related to the actions of a trader in Hong Kong in December 2015 and the concerns that he had raised as a result of that. The Tribunal found that the Claimant’s key concern had been that the loss incurred to his book from that trade should be made good. The Claimant’s suggestion that one of his managers had offered him a bribe not to escalate the matter was rejected by the Tribunal. It found that the Claimant had not made any protected disclosures about breach of the Equality Act 2010.

[57]The Tribunal made a large number of findings about the Claimant’s time-keeping which clearly showed that it was a source of serious concern to his managers. Some of these are set out at paragraph 30 (above). These included the following, “It is noticeable that the criticism of the Claimant for arriving late to work and the possibility of a written warning as raised before the Claimant made any of his alleged protected disclosures. I accept that it was a genuine concern.” “In the exchange the Claimant was reminded of the 7 am start time. I do not accept that this was being done because the Claimant was raising concerns about the Global FX policy. By this stage [November 2015] the Claimant’s failure to attend work on time was a long standing cause of friction.” “I accept that his poor timekeeping was the genuine reason for the extension of the Claimant’s probation. The Claimant did not challenge the extension at the time. I also consider that Mr Monaghan and Mr Adamson considered if that his timekeeping did not improve formal disciplinary action would be required.” On 7 July 2016 the Claimant was late again and Mr Adamson wrote him an email in which he said, “Please take this email as a final warning before further more formal action is taken regarding persistent tardiness.” On 27 July 2016 Mr Adamson sent the Claimant the email which is quoted at paragraph 30 (above). This was sent at his own behest and he did not allege that he was asked to write it by anyone else. “I accept that Mr Adamson had long-standing concerns about the Claimant’s failure to attend work on time. By the middle of 2016 he was becoming increasingly impatient with the Claimant. I accept that he wrote the email of 7 July 2016 and his email of 27 July 2016 because he was genuinely infuriated by the Claimant’s tardiness.”

[58]The Tribunal found that none of the disclosures made by the Claimant prior to 9 March 2016 had a significant impact on the decision to dismiss him. It also found that his raising the SEC15a-16 issue at the end of March had nothing whatsoever to do with his dismissal.

[59]The Tribunal concluded found that on 8 August 2016 Ms Devitt sent an email in which she said “Things have moved on since this trail” and on 10 August Mr Monaghan sent Mr Adamson a text message in which he said “I will remove you from the conversation when the time comes.” The Tribunal concluded that that was a reference to the dismissal of the Claimant and that a decision to dismiss him had been made by that time. The Tribunal rejected the Respondent’s evidence that the decision to dismiss the Claimant for his timekeeping without going through any procedure was taken at a meeting between Mr Monaghan, Ms Hurrell, Ms Morris and Ms Devitt on 16 August 2017 for a number of reasons:• there was no record of the meeting. Ms Morris’ notebook for that period had been destroyed, Ms Devitt’s work mobile telephone had been wiped in 2017 and her personal phone in use at the time had been given to her son and destroyed;

• In the response it had been said that the decision to dismiss had been taken by Ms Hurrell alone whereas at the hearing it was said that the decision had been taken jointly by Ms Hurrell and Mr Monaghan;

• Ms Hurrell and Ms Devitt in their witness statements had relied heavily on the fact that the Claimant had breached his loss limit shortly before the meeting as a significant factor in their decision but the Claimant’s dogged pursuit of disclosure had established that the breach of the loss limit took place later on that day after the meeting;

• None of them could remember who suggested dismissing the Claimant without any procedure rather than going through a procedure and/or giving him a written warning. All of them sought to bolster their reason for dismissal by saying that he would be a risk if he remained at the desk;

• All the documents prepared at the time suggested that the only reason for the dismissal was timekeeping;

• They could not explain why they did not await the return of the Claimant’s line manager, Mr Adamson, before making the decision;

• On 17 August 2016 Ms Morris typed a document designed, falsely, to appear as if it had been sent by Ms Hurrell to her and Ms Devitt. It was headed Solicitor Client Privileged, Litigation Privileged, Confidential. Ms Hurrell’s evidence was that no lawyers were involved and she could not explain the heading.

[60]The Tribunal concluded that the Claimant’s suggestion in the email of 11 April 2016 that the attestation records showed that many employees were only spending a few minutes completing the form “rang alarm bells”. Rather than undertaking a proper investigation the Respondent had shut the complaint down. The Claimant was “dogged in the extreme”. It found that that email was a protected disclosure and considered that there was a clear inference to be drawn that the Claimant was dismissed for making that public disclosure.

[61]The Tribunal also concluded that in the absence of the email of 11 April 2016 the Claimant’s persistent lateness would have been likely to have resulted in a disciplinary process and a written warning. It also found that he bore an element of responsibility for his dismissal because of his persistent failure to attend work on time, despite his repeated protestations that he would do so. The Tribunal found that he contributed 25% to his dismissal.

[62]The Respondent appealed against the liability decision. HHJ Stacey in the EAT allowed the appeal to proceed to a full hearing. She said, “It is arguable that the Employment Tribunal has either(1) not properly explained how it viewed the Claimant’s line manager, Mr Adamson’s email of 27 July 2016, when set against a background of repeated and genuine concerns about the Claimant’s failure to get to work on time at 7 am as required leading to what the Employment Tribunal accepted was Mr Adamson being “genuinely infuriated by the Claimant’s tardiness” when reaching its conclusion that the principal reason for the dismissal was the Claimant’s qualifying and protected disclosure, or

(2) reached a perverse conclusion, especially in light of the absence a finding as to the identity of the decision maker.” The Respondent had also appealed against the 25% uplift for failure to comply with the ACAS Code of Practice. When EJ Tayler reconsidered that decision, the Respondent decided not to pursue the appeal.

[63]In an email to the parties dated 17 January 2020 EJ Tayler informed the parties that on 25 October 2019 he had responded to an email from a DC Khan who said that he was investigating an allegation of perjury made by the Claimant. His response had been “The Tribunal made no finding of perjury in this case.” He ended the email of 17 January 2020 by saying, “For the avoidance of doubt, I confirm that having heard the totality of the evidence I did not consider that there was evidence that warranted a referral of Ms Devitt to the DPP to consider prosecution for perjury.” Conclusions

[64]I considered first whether the response had had no reasonable prospect of success and whether the Respondent had acted unreasonably in defending it. The Claimant’s case was that the cumulative effect of his 14 protected disclosures was the sole or principal reason for his dismissal. Although the Claimant did not pursue claims of whistleblowing detriments, he relied on what he said were the Respondent’s negative reactions to his protected disclosures to establish that they were the reason for his dismissal. A very large part of the case put forward by the Claimant was rejected by the Tribunal. It found that he had made only one protected disclosure. It found that he had raised some concerns about certain matters but that these had either not amounted to protected disclosures or had not concerned the Respondent and led to them treating him adversely, and had played no part in the decision to dismiss him.

[65]The Respondent’s case that the Claimant had been dismissed for his poor timekeeping was not without substance. The Tribunal accepted that the Claimant’s timekeeping had been a matter of serious concern throughout his short period of employment. His probationary period had been extended because of it. The concern culminated in his line manager writing on 27 July 2016 in which he referred to the effect of the Claimant leaving (“I feel the Bank will lose valuable intellectual capital”) and said that his position had become “untenable” and that his lack of care had led “to a breakdown of trust.” The Tribunal accepted that he had written that email because that was what he felt. It was significant that the decision to dismiss the Claimant was made 2-3 weeks after that email was written, and some four months after the protected disclosure. It was much closer in time to the decision to dismiss and it was therefore more than arguable that it was the principal reason for the dismissal. The Tribunal concluded that the timekeeping contributed 25% to the dismissal.

[66]This was not a case where there was clear evidence that the protected disclosure was the principal reason for the dismissal and the Respondent had decided to pursue its defence regardless of that. The Tribunal did not find the Respondent’s witnesses’ account of the decision on 16 August credible for the reasons set out at paragraph 59 (above) and drew an inference from that, and the way in which the Respondent investigated the protected disclosure, that the protected disclosure was the principal reason for the dismissal. The fact that a claimant succeeds in his claim does not mean that the response had no reasonable prospect of success. The Claimant lost a large part of his case but succeeded on one part. The fact that the Respondent’s appeal got through the sift at the EAT and was allowed to proceed to a full hearing also suggests that it cannot be said that the response had no reasonable prospect of success. The Respondent had an arguable defence and the evidence to support it. I accept what was said on behalf of the Respondent – this was a case that could have gone either way.

[67]For all the reasons given above, I do not consider that the response had no reasonable prospect of success or that the Respondent acted unreasonably in defending the case.

[68]The Claimant also relied on other matters to support his application for costs on the grounds of the Respondent’s unreasonable and disruptive conduct. The first was that the Respondent’s witnesses had been untruthful and had colluded to give their evidence. The Claimant relied on two matters in support of this. The first was that the Mr Monaghan, Ms Hurrell and Ms Devitt had colluded in being untruthful to give evidence that the Claimant’s breach of his loss limit had been discussed at the meeting on 16 August 2016 and had contributed to his dismissal.

[69]It was not in dispute that the Claimant did breach his trading loss limit on 16 August after the meeting. All those at the meeting were made aware of it on that day or the following day. The Respondent’s case, as pleaded in its response, was not that the Claimant had dismissed because of the breach of the loss limit. Mr Monaghan did not say in his witness statement that that was the reason for the Claimant’s dismissal or that it was discussed at the meeting on 16 August. He said, “I had lost confidence in Mr Banerjee’s ability to manage risk and his ability to do his job properly and therefore I wanted him off the platform as soon as possible. I had on more than on occasion had a firm discussion with Mr Banerjee because he had breached the stop-loss limits that I had set for all the FX traders. He did so again only the day before Ms Hurrell communicated the decision to him that his employment was terminated.” The Claimant had breached the loss limits prior to 16 August 2016. Ms Hurrell and Ms Devitt had said in their witness statements that they had discussed it at the meeting but they corrected their witness statements when they gave their evidence in chief. The Tribunal did not find that they had lied about it. In light of the fact that the Claimant had breached loss limits before, he breached it again very soon after the meeting and the witnesses were aware of it around that time, it is not surprising that there might have been confusion about precisely when they discovered it and discussed. I do not accept that they colluded to be untruthful about it.

[70]The second allegation of collusion and untruthfulness was that Ms Hurrell had changed her evidence about the email sent on 17 August setting out what had been decided about dismissing the Claimant. Ms Hurrell’s evidence in her witness statement was that she had sent the email on 17 August summarising the decision that had been reached in the meeting on 16 August. In cross-examination she said that she and Ms Morris from HR had drafted the email together and Ms Morris had typed it. She said that no lawyers were involved. Ms Morris had suggested that she put the heading and she had followed that advice. She said that she did not know what the terms “litigation privileged” and “solicitor-client privileged” meant. There is nothing to indicate to me that that evidence was untruthful.

[71]The Claimant’s second ground for saying that the Respondent had acted unreasonably and disruptively related to disclosure and the destruction of evidence. I do not accept that the Respondent failed to comply with the order for disclosure made by EJ Tayler on 24 April 2018. The witness statement of Ms OdimbaChapman, the partner with conduct of the matter at Clifford Chance, sets out in detail the steps that were taken to comply with the order. Equally, I do not accept that the Respondent acted unreasonably in responding to the Claimant’s different questions about the HR notebooks. I accept that the Respondent did not always respond within a day or two which led to the Claimant repeating the same questions again. It is correct that the Claimant’s previous solicitors wrote to the Respondent on 5 September 2016 that he was thinking of appealing against his dismissal and asked that all relevant material relating to the Claimant be preserved. No litigation was intimated or threatened in that letter. Ms Devitt responded that the Bank would take steps to preserve all relevant evidence. The Claimant’s appeal was dismissed on 10 November 2016 and the claim form was presented on 2 March 2017. Ms Morris destroyed her notebook in December 2016. I have no basis for concluding that she destroyed it deliberately to conceal evidence that would have assisted the Claimant. Ms Dunlop had destroyed her 2015 notebook before going on maternity leave in November 2017. She had reviewed it in September 2017 in response to the Claimant’s request for specific disclosure. There had been nothing to disclose. I did not consider that the Respondent had acted unreasonably or disruptively in connection with disclosure.

[72]In conclusion, I did not consider that the response had had no reasonable prospect of success or that the Respondent had acted unreasonably or disruptively in the conduct of the proceedings.