Employment Judge Mr N DeolMr D Brook (instructed by Counsel) for claimantMs R Azib (instructed by Counsel) for respondentDate 14 May 2019
JUDGMENT
[1]The claims for Unfair Dismissal [section 98(4) Employment Rights Act 1996 (“ERA”)] and Automatic Unfair Dismissal on the grounds of making a protected disclosure (Section 103A ERA) will proceed to the full merits hearing.(i) The Respondent’s arguments that these claims should be struck out on the basis that they have no reasonable prospect of success fail.(ii) The Respondent’s arguments that the Claimant should pay a deposit on the basis that these claims have little prospect of success fail.[2]The claims for unlawful detriments on the grounds of making a protected disclosure (Section 47B ERA) are struck out as having no reasonable prospect of success.
REASONS
[1]The Claimant pursues claims of unfair dismissal, both under Section 98 of the Employment Rights Act 1996 (“ERA”) and Section 103A of the ERA (automatic unfair dismissal for making a protected disclosure). He also says that he has been subjected to detriments for the same reason (Section 47B of the ERA).[2]The Respondent’s position is that the Claimant’s pleaded claims are limited to his complaints of unfair dismissal and that these claims have little or no reasonable prospect of success. It seeks a strike out or, at the very least, a deposit order in respect of them.[3]The Respondent makes the same arguments in relation to the Claimant’s claim of unlawful detriment, if these claims should be allowed to proceed at all. The Respondent suggests that these are new claims introduced by further particulars supplied by the Claimant, and should therefore be the subject of an amendment application, an application that the Respondent says, must fail.[4]A case management hearing was conducted on 19 September 2017 at which further detail of the Claimant’s claims was sought, specifically what the alleged protected disclosure and detriments were. Insofar as any detriments could not be cross referenced to the original pleadings the Claimant was invited to make an application to amend his claim.[5]An Order was also made for disclosure of documents (and possibly witness evidence) relevant to any of the further particulars provided by the Claimant and the Respondent was given leave to apply for a hearing to determine preliminary issues if it so wished, leading us to the preliminary issues to be determined today.[6]The Respondent’s position, at today’s hearing, is best summarised by reference to paragraph 4 of the written submissions prepared by Ms Azib. In short the Respondent’s aims were as set out at paragraphs 2 and 3 above, with the additional point that the alleged claims for detriment, that had now been particularised, were also substantially out of time, if part of the Claimant’s claim at all. In addition, the Respondent set out detailed argument as to why the Claimant’s alleged disclosures fell short of the statutory definition of “protected disclosures,” and why his unfair dismissal claim was hopeless.[7]The Claimant’s position was that today’s applications were entirely premature and misconceived. It urged the Tribunal to dismiss the applications and allow the case to continue to a full merits hearing at which all of the arguments could be properly considered. The Claimant did not seek to amend the Claim to include the complaints of detriment, arguing instead that this was unnecessary as these were part and parcel of the Claimant’s original claim.
The issues
[8]The first issue is what is in the Claimant's claim, specifically; does it include his claim of detriment based on making a protected disclosure? Is an amendment application required to include these detriment claims?[9]Secondly do any of the Claimant’s claims (including the detriment claim if it has been pursued at all) have no reasonable prospects of success such that they should be struck out, or little reasonable prospect of success such that the Claimant should be ordered to pay a deposit to continue with them. The Respondent’s arguments are based on the merits of the Claimant’s substantive case and limitation issues. Relevant Legal Principles The Scope of the Claim[10]Employment Tribunals have a general discretion to grant leave to amend a claim. This is a judicial discretion to be exercised 'in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions'. Selkent Bus Co Ltd v Moore [1996] ICR 836[11]In this case however the Claimant does not pursue an amendment, he argues that the claim is as he has already set out, including the allegations of detriment. In the absence of an amendment application the Claimant’s claim either stands or falls on this argument and what he has included in his ET1.[12]A party's case should be set out in its original pleading – his ET1. In Chandhok v Tirkey [2015] ICR 527, in which an issue as to the scope of the claim arose, the EAT said: "The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1."[13]In principle, it is not permissible to expand the scope of a claim or a response through, for example, further particulars, inter-party correspondence, a list of issues or witness statements.[14]Some useful guidance as to what level of clarity is required can be found in the authority of Baker v Commissioner of Police of the Metropolis UKEAT/0201/09 in which, the EAT found that an ET1 form contained no recognisable complaint of disability discrimination. Although the claimant ticked the "disability" box, the details he provided of his complaint did not refer to disability.[15]One must look at the whole claim to decide the full extent of what is being pursued. In Ali v Office of National Statistics [2004] EWCA Civ 1363, the Court of Appeal held that whether a claim form already contained a specific claim could only be judged by looking at the document as a whole and considering the name given to the claim as well as the factual details accompanying it. If the claim was put very generally, its particulars would need to be specific enough to enable the employer to be clear about what allegations were being made against them.[16]In Tattersall v Liverpool Women's NHS Foundation Trust UKEAT/0276/16, a respondent had failed to make an application to amend to introduce entirely new grounds of defence to an unlawful deduction from wages claim. However, it had explained those new grounds in correspondence and it was clear that the claimant understood them and had been able to respond to them. In those circumstances, the EAT dismissed an appeal by the claimant against the tribunal's decision to treat the correspondence as amended pleadings.[17]In making this assessment the Tribunal must have regard to the overriding objective to deal with cases fairly and justly, which includes:(i) Ensuring that the parties are on an equal footing.(ii) Dealing with a case in ways which are proportionate to the complexity and importance of the issues.(iii) Avoiding unnecessary formality and seeking flexibility in the proceedings.(iv) Avoiding delay, so far as compatible with proper consideration of the issues.(v) Saving expense.[18]Even in cases where an amendment application is pursued a Tribunal should have regard to all the circumstances of the case and in particular, any " injustice or hardship which may be caused to any of the parties ..” Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650. Likewise the EAT in Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore [1996] IRLR 661, held that, when faced with an application to amend, a tribunal must carry out a careful balancing exercise of all the relevant circumstances and exercise its discretion in a way that is consistent with the requirements of "relevance, reason, justice and fairness inherent in all judicial discretions."[19]Ultimately, however, it is not for the Tribunal to draft an amendment on behalf of a party. In the case of Margarot Forrest Care Management v Kennedy UKEAT/0023/10 the EAT held that it was appropriate for the tribunal to draw the claimant's attention to the fact that the description of her dismissal given appeared to raise a new matter, and that an application to amend would be required to include that new matter in the case before the tribunal. However, the tribunal had erred in law as it has no power to draft an amendment on a party's behalf. Strike Out[20]The Respondent argues that certain parts of these proceedings have no reasonable prospect of success and should be struck out and other parts of these proceedings have only limited prospect of success and a deposit order should be made against the Claimant.[21]The relevant part of the 2004 Rules states that strike out can be ordered where there is no reasonable prospect of success. The power to strike out a claim under Rule 18(7)(b) on the ground that it has no reasonable prospect of success may be exercised only in limited circumstances. In Balls v Downham Market High School & College [2011] IRLR 217, EAT, the nature of the test to be applied was described as follows: ''[T]he tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.''[22]As a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute (North Glamorgan NHS Trust v Ezsias [2007] EWCA Civ 330, [2007] IRLR 603, On a striking-out application (as opposed to a hearing on the merits), the tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents, or where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation.'[23]Where a case is fact-sensitive, a claim should be struck out only in the most exceptional circumstances.[24]That said the Court of Appeal has recognised that Employment Tribunals should not be deterred from striking out claims, even where there are disputed facts if they are satisfied there is indeed no reasonable prospect of the facts necessary to liability being established. Ashok Ahir v British Airways Plc. In that case the Court noted that; “where there is on the face of it a straightforward and well documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the Claimant being able to advance some basis…” Deposit Order[25]If the Tribunal considers that contentions put forward by a party in relation to any matter to be determined by a tribunal have little reasonable prospect of success, he may order that party to pay a deposit of an amount not exceeding £1000 as a condition of being permitted to continue to take part in the proceedings relating to that matter. In relation to the Primary Claim the maximum limit is £500. Before making an order, the judge must take reasonable steps to ascertain the ability of the party to comply with the order, and take account of any such information in determining the amount of the deposit.[26]When determining whether to make a deposit order a tribunal is not restricted to a consideration of purely legal issues but is entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward (Van Rensburg v Royal Borough of Kingston-upon- Thames UKEAT/0095/07, [2007] All ER (D) 187 (Nov). That said the tribunal 'must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response’.[27]In relation to Respondent’s arguments that the Claimant’s claims should be struck out or be the subject of a deposit order reference was made by the Respondent’s representative to the law on unfair dismissal and whistleblowing, including arguments as to whether alleged disclosures were protected disclosures at all, and causation. The Tribunal will not repeat these principles here as they are set out in full in the submissions and are not in dispute. Time limits[28]The issue of time limits arose in two ways. Firstly in relation to the Respondent’s arguments about whether an application to amend should be permitted, as per the guidance set out in Selkent Bus Company v Moore (1996 IRLR 661). In the absence of such an application these submissions were of less value than the Respondent envisaged.[29]Of more relevance was the argument the alleged detriment claims were simply out of time on the basis that there was no continuing course of conduct. The Respondent’s focus was on whether there had been a continuing course in respect of the Claimant’s alleged disclosures when the focus should be on the alleged detriments.[30]The Respondent submitted that the Claimant could not show that it was not reasonably practicable for him to bring claims within time or offer an explanation for submitting the claims late.[31]An important question for the Tribunal here, and one which the Claimant invited the Tribunal to consider carefully, was whether this determination could be made in the absence of evidence. The Claimant’s representative preferred that the Tribunal adopt an approach not dissimilar to that taken in Galilee v Commissioner of Police of the Metropolis UKEAT/0207/16, where the limitation issues were postponed to the substantive proceedings recognising that it this might be necessary in cases that require significant evidence in order to determine time points, such as whether there are any continuing acts or whether time should be extended in discrimination claims[32]There will of course be cases where it is more appropriate to determine limitation issues at a preliminary stage, where for instance time and cost can be saved. This would include cases where the limitation issues are likely to have an influence on the question of whether a claim has reasonable prospects of success or little prospects of success. Nevertheless the Tribunal has to carefully consider whether, on the basis of the arguments from both sides, that assessment can be, and should be, made at this preliminary stage.[33]In the case of Accurist Watches Ltd v Wadher UKEAT/0102/09, it was accepted that it was not an absolute requirement of the rules that evidence should be adduced in witness statement form on the issue of whether it is just and equitable to extend a time limit. A tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including an explanation for the failure to present a claim in time, and such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.[34]The Tribunal also considered the guidance set out in the case of Aziz v FDA [2010] EWCA Civ 304 and in particular the fact that at this stage of proceedings, before evidence has been considered, the claimant only need have a reasonably arguable basis for the contention that the various complaints are so linked that they amount to continuing acts or constitute an ongoing state of affairs.[35]In Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686; [2003] ICR 530, a case involving a number of allegations of race and sex discrimination over a period of 11 years, the Claimant was allowed to pursue her claim beyond a preliminary stage in the proceedings on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of an 'act extending over a period'. The Court noted that she may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no 'act extending over a period' for which the Respondent can be held legally responsible but at a preliminary stage it was too soon to say that the complaints had been brought too late.[36]In the case of Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 the question of time bar was dealt with at a pre-hearing review. The test to be applied at the pre-hearing review was to consider whether “the claimant had established a prima facie case” and the Tribunal must ask itself “whether the complaints were capable of being part of an act extending over a period” rather than deciding firmly that they were.
Conclusions
[37]The Claim Form was submitted on 4 July 2017 with detailed particulars. The allegation made in the introductory paragraph was that: “ the dismissal was automatically unfair pursuant to the provisions of Section 103A of the Employment Rights Act 1996 and in any event procedurally and substantively unfair”.[38]The Claimant sought a “declaration of unfair dismissal, compensation and reinstatement,” but reserved the right to plead further.[39]The background, as set out in the Particulars of Claim, is detailed and sets out a number of events that pre-dated the Claimant’s dismissal including reference to matters that are now relied upon in support of his detriment complaints such as complaints of bullying, harassment and intimidation.[40]The Respondent addressed these matters in Section 4 of the Grounds of Resistance under the heading “Bullying and Intimidation.” The precise extent to which these complaints were being relied upon to run a detriment claim may have only become obvious to the Respondent at the point the Claimant’s voluntary particulars were provided on 29 September 2017 but it has to be said that there was sufficient factual information in the original pleadings for the Respondent to recognise that the complaint was more than an unfair dismissal claim and extended over a period of time.[41]The Respondent made its position clear in a Response to the Claimant’s Further Particulars dated 17 October 2017. It raised concerns that the “new” detriment claims had not been set out in the original particulars of claim, nor the amended list of issues sent to the Respondent on 14 September 2017. It also pointed out that there had been no application to amend and in any event the claims are now out of time.[42]The Claimant sidestepped these arguments by arguing that his complaints were clear from the original particulars of claims, and that the further particulars simply clarified the legal heads of the claim, a position that the Tribunal accepts. Employment Tribunals will be familiar with complex claims where the factual matters are set out in some detail but the precise legal issues are only settled at a subsequent point in the proceedings.[43]In conclusion the Claimant’s original claim includes both of his unfair dismissal complaints and the claims that he has been subjected to a detriment for making a protected disclosure.[44]The Respondent’s alternative argument is that the claims should be struck out or subject to a deposit order on the basis that they have no or little prospects of success.[45]In relation to the unfair dismissal claims, the Respondent essentially submits that the reason for the Claimant’s dismissal is obvious. It is because of alleged misconduct, and given the nature of the disciplinary allegation, the decision to dismiss must fall comfortably with the range of reasonable responses open to it. The Respondent also argues that the attempts to link the dismissal to alleged protected disclosures are simply disingenuous, although it argues the Tribunal shouldn’t get to this point because there had been no whistle blowing to start off with.[46]To assist the Tribunal the Respondent made references to a number of documents in the bundle, relating to alleged whistle blowing and the disciplinary process that eventually led to the Claimant’s dismissal.[47]The Claimant’s position was that the Tribunal could not properly assess the prospects of his claims succeeding without considering evidence and before full disclosure had taken place. This was illustrated by identifying a number of inconsistencies in the Respondent’s arguments regarding the whistle blowing claims and process and consistency issues that remained unanswered but could clearly be relevant to the unfair dismissal claims.[48]The Respondent made a significant attack on the alleged protected disclosures arguing that there had obviously been no disclosure of information, that the Claimant could not legitimately argue that he held a “reasonable belief” and that any disclosures were not in the “public interest”.[49]The Claimant argued, and the Tribunal accepts, that it is difficult to determine these issues at this stage. The burden of proof will be on the Claimant to establish that he had made protected disclosures, something that he should have the opportunity to do through his own evidence and through challenging the Respondent’s evidence, after disclosure has taken place.[50]The Claimant’s ET1 and further particulars set out the outline of his case that he had made protected disclosures and that he had been dismissed and subjected to various detriments, arguments that could not be said, at this early stage of the proceedings, as having no reasonable or little prospect of success.[51]This takes us to the limitation issues pursued by the Respondent in relation to the alleged detriment claims. The Claimant again argues that it would be premature to address this issue at this stage, where there may be evidence that suggests that there has been a continuing series of events that bring all the issues complained of in time.[52]The first of the Claimant’s alleged detriments was in March 2015, followed by a further cluster between April 2016 and August 2016. The most recent was the decision to put the Claimant into a disciplinary process in January 2016 (which is presumably a reference to January 2017). He was dismissed on 17 February 2017 and the Claim was eventually submitted in July 2017.[53]A Tribunal must exercise caution in deciding that claims are likely to fail on limitation issues, and indeed other issues, where evidence has yet to be considered. That said it is not uncommon to deal with time limit considerations at a preliminary stage and quite often the overriding objective is achieved by doing so. This is case where it would be appropriate to do so.[54]It is of course open to a Claimant to put forward some evidence or argument to overcome a limitation issue at a preliminary hearing, perhaps enough to suggest that there could potentially be a continuing series of events or omissions or to explain the delay in submitting a claim. Indeed the parties were expressly invited to do so in the Order from the Case Management Hearing in September 2017. A Claimant that does not do so takes some risk, even at this preliminary stage.[55]In a case like this, where there are a number of distinct and seemingly unconnected alleged detriments, involving different people with lengthy gaps between them, including a gap of around 5 to 6 months between the last of the alleged detriments and the instigation of the claim, a Claimant would be well advised to advance some argument or evidence as to why the detriments were connected or why a claim was submitted late.[56]In this case no arguments were advanced by the Claimant on the limitation issue, other than that it was premature to make any sort of determination at this stage. The Tribunal’s view is that the Claimant has failed to even indicate the link between his various detriment claims or provide an explanation as to why he had not pursued these claims at an earlier stage. In summary, he has been unable to demonstrate that there was a reasonably arguable basis for overcoming the limitation issues before him, in relation to his detriment claims.[57]In the absence of an explanation from the Claimant, his detriment claims are likely to fail on limitation issues alone whether on a continuing act basis and/or a time limit. Accordingly these claims are dismissed as having no reasonable prospect of success. Both of his unfair dismissal claims were pursued in time and will proceed to the full merits hearing.
Introduction
[1]The Respondents are the corporate vehicle for the UK operations of Mizuho Bank, which is part of one of the largest financial services organisations in Japan. The company employs about 800 people in the UK.[2]The Claimant, Mr Marius Caracota, was employed by the Respondents as an Associate Director in their European Corporate Finance Department from 1 July 2014 until 17 February 2017, when he was dismissed for gross misconduct, namely the unauthorised appropriation of a bicycle chain wheel guard belonging to another employee. At the time of his dismissal he was earning an annual salary of £80,000 plus sundry benefits.[3]The Claimant’s first language is French. He has an excellent command of written and spoken English, although he speaks with a marked accent.[4]By a claim form presented on 4 July 2017 the Claimant brought an Employment Tribunal complaint alleging ‘automatically’ unfair dismissal on public interest disclosure (‘PID’) grounds, ‘ordinary’ unfair dismissal and detrimental treatment on PID grounds. The Respondents denied all claims.[5]In a document dated 29 September 2017 the Claimant set out voluntary further particulars of his claims, to which the Respondents replied with full, amended grounds of resistance dated 17 October 2017.[6]By a judgment dated 25 January 2018 Employment Judge Deol struck out the detrimental treatment claims and declined applications on behalf of the Respondents that the unfair dismissal claims should be the subject of striking-out orders or, in the alternative, deposit orders. That judgment was reconsidered and varied by a further judgment issued by the same judge on 8 August 2018, to the extent that a detriment claim based on the instigation of the disciplinary process in January 2017 was permitted to proceed as a free-standing claim.[7]The case came before us on 27 March this year for final hearing, with five days allowed. The Claimant appeared in person and the Respondents were represented by Ms R Azib, counsel.[8]At the start of the hearing we were required to resolve a disagreement about the scope of the dispute. The result of our adjudication was that the draft list issues included in the trial bundle stood save that the Claimant was not permitted to rely on the PID identified at para 3.7. A copy of the list of issues is appended hereto. The parties were at odds about paras 3.6 and 3.7, which identified two PIDs to which Ms Azib objected on the grounds that neither featured in the pleaded case (meaning the claim form read with the further particulars). As to the former, we were not persuaded that the objection had substance. It seemed to us implicit from the further particulars, paras 6-8 that the Claimant was claiming to have rehearsed on 4 May 2016 the points which had featured in his prior alleged PIDs of 21 April. In any event, the Respondents were able and ready to deal with detriment and unfair dismissal claims based on the alleged PID of 4 May. Accordingly, to the extent that an amendment of his case was required, we granted it in the form proposed in the list of issues, para 3.6. We saw the disagreement about para 3.7 differently. Here the proposed PID was not foreshadowed or even hinted at in the pleaded case and we were satisfied that the Respondents would be prejudiced by a late amendment for which no good reason was shown. We therefore refused permission to amend the claim form and the Claimant was not at liberty to base any claim on the para 3.7 PID. On the other hand, he was, of course, free to give evidence relating to that aspect if he felt that it might assist his claims based on the other, pleaded, PIDs. As will become apparent, our rulings on paras 3.6 and 3.7 ultimately proved to have no bearing on the outcome of the case.[9]Having read into the case and dealt with the preliminary issue just mentioned, we heard evidence and closing argument before adjourning for private deliberations on day four. On the afternoon of day five we delivered an oral judgment dismissing all claims.[10]These reasons are given in writing pursuant to a written request by the Claimant dated 4 April 2019.
The Legal Framework
[11]By the Employment Rights Act 1996 (‘the 1996 Act’), s43B, it is stipulated that: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show one or more of the following – (a) … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject …[12]Qualifying disclosures are protected if made in accordance with ss43C to 43H (see s43A). By s43C, it is provided that: (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure – (a) to his employer …[13]The requirement for a reasonable belief that the disclosure is in the public interest was enacted by means of an amendment introduced by the Enterprise and Regulatory Reform Act 2013. Its effect was examined by the Court of Appeal in Chesterton Global Ltd v Nurmohamed & Anor [2017] EWCA Civ 979. Giving the leading judgment, Underhill LJ rejected the argument that a disclosure about a breach of an individual worker’s contract of employment (or some other matter personal to him or her) could not fall within the statutory protection. In such a case the Tribunal must have regard to all the circumstances including the number of people whose interests the disclosure served, the nature of the interests affected and the extent to which they are affected by the disclosure, the nature of the alleged wrongdoing and the identity of the alleged wrongdoer.[14]By s47B(1) a worker has the right not to suffer a detriment (which may take the form of an act or a deliberate failure to act) done on the ground that he has made a PID. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of a reasonable worker would or might take the view that he has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment: see Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL.[15]A dismissal is ‘automatically’ unfair if the reason or principal reason is that the person dismissed has made a protected disclosure (s103A).[16]The ‘ordinary’ unfair dismissal claim is governed by the 1996 Act, s98. It is convenient to set out the following subsections:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – … (b) relates to the employee’s conduct … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[17]Although our central function is simply to apply the clear language of the legislation, we are mindful of the assistance available, both legislative and judicial. By the Trade Union and Labour Relations (Consolidation) Act 1992, s207(2), any ACAS Code of Practice which appears to be relevant to any question in the proceedings is admissible in evidence and “shall be taken into account in determining that question”. We bear in mind the guidance applicable to misconduct cases contained in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT (although that authority must be read subject to the caveat that it reflects the law as it stood when the burden was on the employer to prove not only the reason for dismissal but also its reasonableness). The criterion of ‘equity’ (in s98(4)(b)) dictates that, the more serious the allegation and/or the potential consequences of the disciplinary action, the greater the need for the employer to conduct a careful and thorough investigation (A v B [2003] IRLR 405 EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA). From Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT and Post Office v Foley; HSBC Bank v Madden [2000] IRLR 827 CA, we derive the cardinal principle that, when considering reasonableness under s98(4), the Tribunal’s task is not to substitute its view for that of the employer but rather to determine whether the employer’s decision to dismiss fell within a band of reasonable responses open to him in the circumstances. That rule applies as much to the procedural management of the disciplinary exercise as to the substance of the decision to dismiss (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 CA). Oral Evidence and Documents[18]We heard oral evidence from the Claimant and his supporting witness Mr Bertrand Le Cam, and, on behalf of the Respondents, Mr Christopher Gray, Mr Richard Allen, Mr Ross Marder, Mr Simon Miller and Mr Paul Carman. Of these the last three were the principal witnesses, being the senior officers who, respectively, conducted the investigation, the disciplinary hearing and the appeal.[19]In addition to the testimony of witnesses we read the documents to which we were referred in the substantial bundle of documents.[20]We also had the benefit of the helpful closing submissions produced on both sides.
The Facts
[21]The evidence was extensive. We have had regard to all of it. Nonetheless, it is not our function to recite an exhaustive history or to resolve every evidential conflict. The facts essential to our decision, either agreed or proved on a balance of probabilities, we find as follows. The alleged PIDs[22]For the purposes of identifying the relevant PIDs, we will refer to the paragraph numbers in the list of issues.[23]As to paras 3.1 and 3.2, we find that, on 2 March 2015, orally and by email, the Claimant disclosed to Mr Thomas Kenny, a Compliance Officer who reported to Mr Miller, that he had a role in investment business and was not FCA registered. He stated or implied that he believed that registration was required and that not being registered constituted a breach of FCA rules.[24]The disclosure at para 3.3 is established to the extent that the Claimant orally repeated to Mr Gray on 2 March 2015 the disclosures at paras 3.1 and 3.2. We are not persuaded that there was any wider disclosure than that.[25]The senior managers aware of the Claimant’s concerns were very clear that there was no substance to them because, given the nature of his role, he did not require FCA registration, and reassured him accordingly. He did not press the matter further at that time.[26]The para 3.4 disclosure is also made out to the extent that, by an email of 21 April 2015, the Claimant disclosed to Mr Allen, Chief Operating Officer, and Mrs Kim Cowling, Head of HR, that he had been subjected to what he regarded as bullying and aggressive conduct by Mr Ali Gulfaraz, his line manager. In the same message he stated that he would “keep it informal”. He did not raise any formal complaint thereafter.[27]As to para 3.5, the Claimant wrote an email to Mr Allen on 22 April 2016, in which he complained about the performance rating which he had been given by Mr Gulfaraz and alleged that, at a meeting to discuss it, Mr Gulfaraz had shouted at him and threatened to cut his pay and get rid of him. He went on to propose a “solution”, namely a change in his reporting line from Mr Gulfaraz to Mr Gray. Under a heading, “Important Note”, the message also included other complaints about Mr Gulfaraz, including: ECA and Compliance issue in July 2014 where he asked me to lie. ‘ECA’ was a slip for ‘FCA’, a reference to the concerns raised in March 2015.[28]The disclosure referred to in para 3.6 is not established in fact. We find that there was no fresh disclosure of information by the Claimant on 4 May 2016. There was simply a conversation between him and Mr Allen in the course of which the earlier allegation about being asked by Mr Gulfaraz to lie was mentioned and, after a discussion (in which the latter had explained (again) why the Claimant was mistaken about the issue of FCA registration), explicitly withdrawn by the Claimant. He confirmed that withdrawal in an email sent later the same day to Mr Allen, describing the ‘lie’ allegation as “inaccurate”.[29]As to para 3.8, we are not persuaded that the Claimant made the disclosure relied upon. We prefer the contrary evidence of Mr Gray and Mr Allen. The disciplinary process[30]On 24 November 2016 a Senior Proprietary Trader employed by the Respondents reported to the security team that the chain wheel guard from his folding bicycle had been taken. During the events which followed he was referred to as ‘Mr A’.[31]At a somewhat pedestrian pace, an investigation was put in train. CCTV footage from at least one camera located in the bicycle garage was reviewed. This showed the Claimant entering the garage during the working day, removing the chain wheel guard from a bicycle which was not his and placing it in a corner.[32]Mr Marder, Senior Associate Director in the Human Resources Business Partner Team, was given the task of conducting an investigation.[33]Mr Le Cam (who at all relevant times worked in Paris) told us about a telephone conversation which he had had in the first half of December 2016 with someone who held a senior position in the London office. The exchange concerned or at least touched upon the Claimant’s future but progressed very little because Mr Le Cam was told that he was likely to be dismissed. On balance, we accept this evidence. We think it probable that the speaker was one of several senior figures in London who knew that the Claimant was under investigation over an allegation of dishonesty and that there was hard evidence to support the case against him. There is no evidence that the speaker’s assessment of the likely outcome was communicated to any decision-maker.[34]On 21 December 2016 Mr Marder interviewed the Claimant. He showed him the CCTV footage. The Claimant agreed that he was the person shown and said that he had taken the item from the colleague’s bicycle because it was his, having been removed from his bicycle “a couple of days” earlier. He said that he had recognised it as his by a dent on it, which had been caused in an accident. He also explained that he had tried to attach it to his bicycle but then realised that he needed tools to do so and so had put it in a corner and collected it later in the day. (It was not in dispute before us that he did collect it and remove it from the premises.)[35]In an email of 22 December 2016 the Claimant told Mr Marder that his memory the day before had been inaccurate as a result of work pressure, a cold and sleepless nights looking after his baby daughter. On further reflection, he stood by his account that the chain guard cover was his and easy to recognise because of the “specific small damages” (sic), but said that he could not “blame anyone” because it might have fallen off his bicycle and, being worthless, it was not the sort of thing that anyone would “intentionally [steal]”. He added that, to “help solve and close this topic”, he would buy a replacement and fit it to the other bicycle on his return to work on 3 January. That solution did not commend itself to the Respondents.[36]The Claimant sent a further email to Mr Marder on 27 December, in which he stated that he had purchased a metal chain guard cover “in October”, to replace his “missing one”, and that he would produce a receipt and bank statement after the Christmas and New Year holiday. We do not recall that that evidence was ever supplied.[37]In a further email to Mr Marder of 4 January 2017, the Claimant referred to an attached revised copy of a note of the meeting of 21 December, which had earlier been supplied to him by Mr Marder or someone on his behalf. Referring to quite significant changes which he had made to the note, he explained that he had “updated the facts” to the best of his memory. Three changes in particular should be recorded. In the revised version, he was represented as having:(a) claimed that he had believed that the item was his, rather than that it was his;(b) said that his chain cover had gone missing “some time before”, rather than “a couple of days” before; and(c) explained that he had put it in a corner, apparently because it was muddy; at all events the reference to tools being required to fit it was deleted. We find that, as a record of what was said on 21 December, the original note was substantially accurate and, to the extent that the two differed materially, the revised version was not.[38]Mr Marder interviewed Mr A, who gave an account of events consistent with his original complaint.[39]A decision was taken to proceed to formal disciplinary action. That decision is not documented. We think it likely that Mrs Cowling was involved. She had heard of the para 3.4 PID and may have been made aware of the para 3.1-3.3 PIDs too.[40]Conduct of the disciplinary hearing was entrusted to Mr Miller, Head of Legal and Compliance. By a letter of 12 January 2017 (dated 2016 in error) he invited the Claimant to attend a disciplinary hearing on 25 January 2017 to answer charges that he had “forcefully” removed the chain wheel guard from the bicycle of another employee without proper reason or authority and had hidden and thereafter removed it from the Bank’s premises. Supporting evidence was attached in the form of the notes generated by Mr Marder’s investigation and the CCTV footage, together with a copy of the Bank’s disciplinary procedure. Mr Miller advised the Claimant of his right to submit evidence in his defence, and of his right to be accompanied. He also pointed out that the allegations were very serious and could (if proven) result in summary dismissal.[41]In an email of 23 January 2017, the Claimant advised Mr Marder that he believed that he had lost his chain wheel cover in December 2015. He was interested in seeing CCTV footage from that period (we are not clear what he thought it might show), but this line of inquiry went no further in any event because Mr Marder was told that footage at the Respondents’ former premises (where they had been in December 2015) was retained for 30 days only and then destroyed.[42]At the Claimant’s request, the disciplinary meeting was put back to 3 February 2017. His first application, for a delay until after his wife had given birth to their second child, due in June, was refused.[43]The Claimant attended the meeting on that date. He was, by choice, unaccompanied. The CCTV footage was reviewed again. Mr Miller probed the Claimant’s recollection as to when he had become aware that his chain wheel guard was missing. He gave answers which were inconsistent with one another and with the earlier account given to Mr Marder. He also gave inconsistent accounts as to when he had first recognised his chain wheel guard on Mr A’s bicycle. Asked why he had put the item in a corner he said that he had done so in order not to lose it again. This contrasted with the explanation given to Mr Marder (because it could not be fitted without tools) and the later account in the revised note (because it was muddy).[44]When Mr Miller tested the assertion that the Claimant had been able to recognise his chain wheel guard on Mr A’s bicycle, he stood by his earlier contention that the minor scuff marks on it were distinctive. The equipment was produced at the hearing before us and we agree with Mr Miller that it is an everyday piece of moulded plastic and does not appear to bear any distinguishing mark or blemish.[45]At the disciplinary hearing the Claimant reverted to the suggestion that Mr A had stolen the chain wheel guard from him. He also made the point that it would have been absurd for him to put his career at risk for the sake of something of trifling value (he told us without challenge that the retail price of the item was less than £6) and all the more improbable when set against the very substantial expenditure which he claimed to have incurred on cycling equipment in the previous year.[46]After the meeting Mr Miller interviewed Mr A. He stated that he had bought the bicycle new and that the chain wheel guard had come with it. He dismissed as “ridiculous” the notion that it was the property of someone else.[47]The Claimant wrote an email to Mr Miller on 5 February 2017 complaining that his conduct of the disciplinary meeting had been inappropriate and that he had prejudged the outcome. His case before us was to the same effect. We find that Mr Miller did press him for answers and may have displayed a degree of scepticism at times during the meeting. We accept that the meeting would not have been a comfortable experience for the Claimant.[48]Mr Miller concluded that the disciplinary charges were made out and that the proper sanction was summary dismissal. He prepared a letter of dismissal dated 16 February 2017 and passed it to Mr Marder for delivery. At a meeting the same day attended by Mr Marder and Mr Allen, the Claimant was shown the letter, but it was not formally delivered to him and Mr Marder then took it back. He and Mr Allen then raised the possibility of the Claimant resigning as an alternative to being dismissed. They pointed out that in that event the Bank would be able to give him a reference stating that his employment had ended with resignation, and his prospects of securing fresh employment in the financial services sector would be greatly improved. The Claimant asked for time to consider his options and it was agreed that he would be allowed 24 hours. The following afternoon he told Mr Marder that he had decided against resigning and would appeal. Mr Marder gave him a further hour, to five o’clock. Having heard nothing more by then, he sent Mr Miller’s letter to him by email.[49]By the letter of 16 February 2017 Mr Miller informed the Claimant that he had found the case against him proved and had decided to dismiss him summarily for gross misconduct. Full reasons were given but in essence they rested on a simple finding that the defence was false and untrue and that the Claimant had knowingly and deliberately misappropriated Mr A’s property.[50]The Claimant exercised his right of appeal. Under the Respondents’ procedures, appeals take the form of reviews rather than complete re-hearings.[51]The appeal was assigned to Mr Carman, Managing Director and Head of the International Acquisition Finance Department. His status was broadly equivalent to that of Mr Miller.[52]In support of his appeal, the Claimant raised three main points. First, Mr Miller had failed to establish whether or not Mr A was the true owner of the chain wheel guard. Second, Mr Miller had prejudged the case. Third, Mr Miller had been influenced against him by Mr Gulfaraz.[53]The appeal hearing took place on 15 March 2017, having been postponed from an earlier date at the Claimant’s request. The Claimant was accompanied by Mr Gray.[54]The Claimant developed the points made in his notice of appeal but also reargued the entire case at considerable length, contending on numerous grounds that Mr Miller had reached a decision which was inherently improbable and flawed procedurally.[55]After the appeal hearing Mr Carman spoke with Mr Miller and, separately, Mr A. Mr Miller was adamant that Mr Gulfaraz had not attempted to influence the disciplinary process and had had nothing to do with and it. Mr A stood by his original account.[56]By a letter of 21 April 2017 Mr Carman dismissed the appeal. In summary, he found that there had been no flaw in Mr Miller’s decision and that there was no reason to overturn it. He added a number of further observations, of which we will mention two. First, given the Claimant’s claim in the appeal hearing to have a sentimental attachment to his chain guard cover, it did not seem plausible that he could not state with any precision when he had become aware that it was missing. Second, there was nothing in the theory that Mr Gulfaraz had been behind the disciplinary action. Secondary Findings and Conclusions The alleged PIDs[57]In our judgment the disclosures identified in paras 3.1-3.4 of the list of issues attract the protection of the legislation. As to the first three, we accept on balance that the Claimant believed that his role required, or might require, FCA registration and that the absence of registration amounted to, or might amount to, a breach of FCA rules. We proceed on the footing that there was a disclosure of information which in his reasonable belief tended to show a breach or potential breach, of a legal obligation. As to the para 3.4 disclosure, we find that it amounted to a disclosure of information about bullying and oppressive treatment of a subordinate including a threat to cut his remuneration. In our judgment the Nurmohamed test is satisfied.[58]The remaining disclosures do not pass the statutory test. The Claimant himself accepted that the ‘lie’ allegation levelled at Mr Gulfaraz (para 3.5) was unfounded and, as we have recorded, withdrew it. We are satisfied that he did not reasonably believe that the ‘disclosure’ was made in the public interest or that it tended to show a breach of any legal obligation. As to paras 3.6 and 3.8, there was, we find, no disclosure of information. Detriment on ‘whistle-blowing’ grounds[59]As already noted, the only detriment claim permitted to proceed rested on the act of instigating the disciplinary proceedings. In our judgment here were ample grounds for bringing disciplinary charges. The complaint of Mr A was apparently sincere. The CCTV evidence was compelling. The Claimant’s evidence to Mr Marder was inconsistent and could reasonably be seen as implausible. On any view, there was a case to answer. To do other than to proceed to disciplinary action would have been a surprising course for any employer faced with such evidence to take. For a bank operating in a closely regulated environment requiring from its workforce the highest standards of probity and honesty, such a decision would have been extraordinary. In these circumstances, it seems to us plain that the Claimant fails to prove any detriment. He certainly feels aggrieved by the fact that he was made the subject of disciplinary action, but his sense of grievance is misplaced and unjustified.[60]In case we are wrong on the subject of detriment, we will complete the analysis. Was the instigation of the disciplinary proceedings materially influenced by the fact that the Claimant had made the PIDs which we have found established, or any of them? We are satisfied that it was not. The FCA registration matter was, as Mr Miller said in evidence, a routine compliance issue which had been raised and addressed over a year and a half before Mr A’s complaint. It did not cause the Respondents any vexation or embarrassment – much less any risk. They rightly understood that it had been laid to rest at the very latest in the first half of 2016. As for the para 3.4 PID, again we see no reason to suppose that the disclosure played any part in the decision to proceed to disciplinary charges. The Claimant had made an allegation about Mr Gulfaraz’s behaviour but he had declined the opportunity to make a formal complaint. The story had fizzled out. There was no apparent damage to the organisation and, by the time of Mr A’s complaint, we have little doubt that it too had faded from the memories of those people (no doubt few in number) who ever knew about it. Generally, the Claimant’s action in making the PIDs did not mark him out as a trouble-maker. There was no reason for anyone in authority to regard him as a disruptive force: he was not. In short, the theory that there was any link between the instigation of disciplinary charges and the PIDs is, we find, completely misguided. Unfair dismissal[61]What was the reason or principal reason for the dismissal? It was, we find, the belief of Mr Miller that the Claimant had knowingly and deliberately misappropriated the property of Mr A and the judgment of Mr Carman that that decision was correct, and certainly permissible. That was a reason relating to the Claimant’s conduct and, as such, a potentially fair reason for dismissal.[62]This disposes of the claim under the 1996 Act, s103A, which asserts that the PID(s) amounted to the reason or principal reason for dismissal. To be completely clear, we find that the decisions of Mr Miller and Mr Carman were not based on, or to any extent influenced by, the fact that the Claimant had made any of the PIDs which we have found proved or made any of the other alleged disclosures relied upon.[63]We turn to the analysis under the 1996 Act, s98. We start by considering the procedure followed. In the first place, there was an adequate investigation. Contrary to the Claimant’s view, very little investigation was needed. The CCTV evidence was eloquent. The accounts of Mr A and the Claimant were taken. The only rational conclusion open to Mr Marder was that which he reached, namely that there were arguable grounds for charging the Claimant with dishonest conduct. The decision to proceed to a disciplinary hearing was proper. He was duly and appropriately charged. Relevant evidence was shared with him. He was given the chance to be accompanied at the disciplinary hearing and the date was rearranged at his request. The suggestion of a postponement for many months was reasonably refused. At the disciplinary hearing he was permitted every opportunity to put forward his defence. We acquit Mr Miller of crossing the line into bullying or oppressive conduct. The defence case was inconsistent and could permissibly be seen as implausible. In the circumstances the Claimant cannot reasonably complain that he was subjected to questioning which he found awkward and uncomfortable. We do not understand his complaint about being given the chance to resign rather than being dismissed. In our view that was a compassionate course to take. The decision to dismiss was fully explained. The appeal was unobjectionable: it amounted to a full and considered review of the first-instance decision. It was permissible for the appeal to be heard by Mr Carman, whose status in the Bank was equivalent to that of Mr Miller. The appeal outcome was fully explained.[64]As to substance, we find that the decisions of Mr Miller and Mr Carman were both unimpeachable. Having heard from the Claimant at length, Mr Miller was entitled to find that he was not telling the truth and to conclude that he had knowingly and dishonestly misappropriated Mr A’s property. Having reached that conclusion, he was also plainly entitled to judge that the proper sanction was summary dismissal. On any view, that penalty was within the range of permissible options. And, equally clearly, Mr Carman acted reasonably (ie permissibly) in dismissing the appeal on the basis that no flaw was shown in the disciplinary decision. Outcome and Postscript[65]As we explained to the Claimant, our function is not to judge him but the Respondents. For the reasons we have given, we are satisfied that they did not infringe his legal rights in any respect. Accordingly, all claims fail and the proceedings are dismissed.[66]Finally, we repeat two observations made orally at the end of the hearing. First, it is preferable for disciplinary appeals to be heard by someone of discernibly higher status than the initial decision-maker. Second, it is best practice for employers to document decisions to proceed to disciplinary action, identifying in each case the taker of the decision. Neither of these imperfections came close to rendering the dismissal in this case unfair.