Ms L Conwell-TillotsonMr M RoweIn person for claimantMs A Mayhew (instructed by Counsel) for respondentDate 22 July 2019
JUDGMENT
[1]The Claimant was unfairly dismissed under sections 94 and 98 Employment Rights Act 1996.[2]The complaint of automatic unfair dismissal under section 103A Employment Rights Act 1996 is not upheld.[3]There shall be no deduction from the Basic and Compensatory awards under sections 122, 123(1) and 123(6) Employment Rights Act 1996.[4]The Respondent has subjected the Claimant to detriments in contravention of section 47B Employment Rights Act 1996 as follows: 4.1. By failing to thoroughly investigate the grievance and the protected disclosures made on 15 December 2017; 4.2. On 20 December 2017, by misleading the Financial Conduct Authority about the reason for the Claimant’s absence from work; 4.3. On 6 February 2018, by falsely alleging to the Financial Conduct Authority that the Claimant had misled the FCA by completion of a Form A; 4.4. From 6 March 2018, by falsely accusing the Claimant of running an ebay account and downloading illegal files on her work computer; 4.5. By mishandling the Claimant’s subject access request; 4.6. On 13 April 2018, without justification, threatening legal action against the Claimant in the High Court for:(1) an injunction for starting employment with an alleged competitor, and(2) for damages in excess of £384,000; 4.7. From 2 February 2018, by the Respondent failing to comply with its obligations under Data Protection Act 1998 and (from May 2018) the GDPR, to delete the Claimant’s personal data, including sensitive and highly personal data and about her private and family life. 4.8. The complaints of direct sex discrimination under section 13 Equality Act 2010 are not upheld.[5]The complaints of victimisation under section 27 Equality Act 2010 are upheld in respect of the detriments listed at Paragraph 4.2 to 4.7 of this Judgment.
REASONS
Conclusions
[1]The Claimant was continuously employed by the Respondent from October 2011 until her resignation without notice on 2 February 2018. After a period of Early Conciliation, by a Claim presented on 18 May 2018, the Claimant complained of: 1.1. Detrimental treatment contrary to section 47B Employment Rights Act 1996 (“ERA”); 1.2. Direct sex discrimination including the treatment of dismissal (section 13 Equality Act 2010, “EA 2010”); 1.3. Victimisation including the detriment of dismissal (section 27 EA 2010); 1.4. Automatic unfair dismissal under section 103A ERA; 1.5. Constructive unfair dismissal under section 98 ERA.[2]The parties produced separate lists of issues and chronologies. At the outset of the hearing, the lists of issues were considered. A final list of issues was agreed on 1 March 2019, which is annexed to this set of Reasons. It is important to recognise that the List of Issues is a road-map for the parties and the Tribunal; we directed ourselves in accordance with the law as set out below when determining the issues.[3]The parties did not manage to agree a chronology; we considered both versions.
The Evidence
[4]The Tribunal read witness statements for and heard oral evidence from the following witnesses (save that there was no written statement for Ms. Patel): For the Claimant: 4.1. The Claimant; 4.2. Bhavisha Patel, former Compliance Manager at the Respondent firm, whose line manager was the Claimant (who appeared pursuant to a witness order); 4.3. Jon Friend, former Compliance Director at the Respondent; For the Respondent: 4.4. Stuart Gee, Head of Human Resources; 4.5. Juan Scarabino, Finance Director; 4.6. Arthur Boissiere, Head of Sales; 4.7. Steve Clowes, Chief Finance Officer.[5]There was a bundle of documents, to which documents were added in the course of the hearing by both parties. Page references in this set of Reasons refer to pages in that bundle. On the morning of 27 February 2019, the Claimant produced a bundle of emails passing between herself and the Information Commissioner’s Office (“ICO”) and between the Respondent and the ICO. This was marked “C1”; the Respondent did not dispute that it had seen this correspondence.[6]The main bundle spanned seven lever arch files and was in the region of 3,000 pages. In addition, there were about 150 pages of witness statement evidence and the substantial list of issues. In that context, it was regrettable that the parties had not informed the Tribunal in advance that 6 days was likely to be too short as a time estimate. The Tribunal, unusually, were able to extend the hearing by 1 day and sit on 7 March 2019. Having reserved judgment, the Tribunal sat in Chambers on 8 April 2019 and, from necessity, on 24 June 2019.[7]The Tribunal found the Claimant and Mr. Friend to be honest and generally reliable witnesses on professional and business matters. They demonstrated that they were very knowledgeable in Compliance matters. We accepted the Claimant’s evidence about how she came to accompany Mr. Friend to Dubai, for the inspection in December 2017, her evidence about where she stayed and the work that she did there, including that she worked on the report and that work emails were sent by her from Dubai.[8]In contrast, the Tribunal found the Respondent’s witnesses to give unreliable evidence in many areas, some of which was not credible. Part of the reason for this was the Respondent’s retrospective attempt to justify its acts or omissions towards the Claimant. In addition, from all the evidence we heard, we inferred that the Respondent’s unreliable witness evidence was coloured by its witnesses’ desire to follow the company line. Its CEO, Alex Pusco, was described by one Respondent witness as “temperamental” and, from both oral and documentary evidence, appeared to lose his patience when his desire for his company was not fulfilled.[9]The Tribunal heard and read a considerable amount of evidence. The following are the relevant findings of fact. It is important for any other Court or Tribunal considering this set of Reasons to recognise that we did not accept much of the Respondent’s evidence on key points nor certain aspects of the Respondent’s submissions. This set of Reasons is not required to be a checklist; not every dispute nor every argument needs to be examined separately. A good example is the set of arguments by the Respondent about the alleged disciplinary process. We found as a fact that a decision to dismiss had been pre-determined, before any reasonable or proper investigation or hearing took place; the alleged process was a sham. Given those findings, there is no need for this Tribunal to pick through the submissions on this issue.
The Facts
[10]The Respondent is a foreign exchange broker, which enables its customers to trade online via electronic trading platforms. It is a market maker, meaning that when the client places a trade, the counter-party to the trade is the Respondent. In summary, the Respondent profits when the client loses, and vice-versa. The Respondent’s founder and CEO is Alex Pusco. Mr. Pusco is more than “hands on”. He is very involved in all its activities. From the evidence we heard, he has a tendency to direct staff in their roles, or takes control of roles, where he perceives this appropriate.[11]The Claimant was Head of Compliance from April 2016 until her resignation. Her promotions, bonuses and salary at various times can be seen on the document at p140. The Claimant had never been subject to any performance management up the point of her dismissal. The Claimant was not subject to any disciplinary proceedings or conduct investigations, up to December 2017. There was no evidence of any negative formal appraisal; indeed, the pay rises and bonuses pointed the other way. For example, at p.129, an email from Mr. Gee states that Mr. Pusco and Mr. Friend recognised her positive performance and contribution to the Respondent, in recognition of which her salary was to rise from £65,000 to £80,000 from 1 April 2016.[12]The Respondent is subject to regulation by the Financial Conduct Authority (“FCA”). The FCA requires companies such as the Respondent to have both controlled functions including CF10 and CF11. The Respondent’s CF11 controlled function (Money Laundering Reporting) was held by the Claimant. This function is described in the FCA Handbook (pp2114A-B), relevant extracts of which are at paragraph 7 of the Claimant’s witness statement. Mr. Friend was Compliance Director, part of the Board, and performed the CF10 function (Compliance Oversight). The holders of controlled functions are registered with the FCA. Mr. Pusco has no FCA Controlled Function and no qualifications in Compliance.[13]It is a requirement of the FCA that businesses such as the Respondent have adequate Risk Management of the Respondent’s liquidity (which in part requires the Respondent to have adequate capital) and that they mitigate conflicts of interest. We found as facts those matters set out in paragraph 24 Claimant’s statement. The Employment Contract[14]The Claimant’s contract of employment (p.99ff) was a standard form contract used for, at least, all its Compliance staff. The Respondent relied on various clauses including 2.1, 2.4, 4.1.5, 4.3, 4.4, and 16.3.[15]The Respondent alleged that the Claimant breached Clause 2.1, and was not a fit and proper person within the Financial Services Authority’s approved regime. We found that this was an attempt to attack her credibility, which lacked substance. Throughout her employment, the Claimant did not breach that condition, and that, as a matter of fact, she was accepted as a fit and proper person within the FCA’s approved regime.[16]The Claimant became the Respondent’s CF11 function holder and MLRO from 14 November 2013.[17]The Respondent relied on the Form A at p. 72-94 (also a Form A is at p.970ff), which was an application to the FCA for the Claimant to hold the CF11 function of Money Laundering Reporting Officer (“MLRO”). Part of the Respondent’s evidence was directed to showing that this was incorrectly completed.[18]The FCA, which makes its own background checks following receipt of an application, determined for itself that the Claimant was a fit and proper person. We considered that it was not for the Tribunal to carry out these checks, some 5.5 years later.[19]In any event, we found that the Form A was completed accurately. We accepted the evidence of the Claimant (at paragraphs 6-7 of her witness statement) and Mr. Friend about this. We preferred the evidence of Mr. Friend over that of Mr. Clowes in the matters of the completion of the Form A and the Respondent’s internal annual attestation. We noted that Mr. Friend was an experienced Compliance Director, and that his knowledge and experience made his evidence persuasive. On the other hand, Mr. Clowes was an accountant, and expressing a view outside his professional training.
Conclusion
[20]The Claimant completed the Form A using the FCA Guidance Notes. The FCA was provided with information about the companies that she had held directorships of.[21]Moreover, the Form A was signed off by the Respondent’s own Compliance Director, Mr. Friend. The FCA requires the Respondent to sign Form A to certify that it believes after due diligence that the Claimant is a fit and proper person (see p.92). It was wholly inconsistent for the Respondent, after the Claimant’s employment for 4 years in the MLRO role, and some years after the approval by one of its own directors (Mr. Friend), to allege that the Claimant was not a fit and proper person. Further, on 29 May 2018, the Claimant was again found to be a fit and proper person to hold the CF11 and CF10 functions after recruitment by her current employer, Alpha Trades.[22]Mr. Clowes, insisted that the answer to question (a) on p.88 was wrong, because companies that were dissolved were liquidated. We did not consider that the question extended to whether companies were dissolved; but in any event, the Claimant did not mislead the FCA, because her Form A listed all the companies in which she had previously held directorships, and gave the status of those companies (including “dissolved”): see p.91.
The Evidence
[23]We noted that Mr. Clowes put the most negative interpretation possible on this document, which was a feature of the Respondent’s witness evidence in other areas. This habit of interpreting any document or piece of evidence in such a negative way caused the Tribunal to doubt the reliability of the Respondent’s evidence in relation to the Claimant’s conduct and alleged failings. For example, we note that this form was counter-signed by Mr. Friend, in his professional role as Compliance Director and years before the Respondent alleged the Claimant and Mr. Friend were in a relationship.[24]The Claimant completed a Respondent’s annual attestation form in 2013 (p.94), and yearly thereafter. It was alleged that the Claimant did not continue to meet the conditions as to fitness and propriety from 2013 onwards because she was not financially sound. The Respondent relied on evidence obtained from files left by the Claimant on her computer which demonstrated the degree of debt that she held at that time.[25]We accepted the Claimant’s evidence that she remained financially sound and that the attestation form was completed correctly. This question can only be considered after the assets of the Claimant are taken into account. She had equity in her property exceeding her personal debts. In any event, she honestly believed that she remained financially sound when she completed the attestation forms.[26]Moreover, in respect of the Fit to Work Declaration form (p.133), we found that the Claimant did not have “impending financial claims”. Read in context (“I do not have any CCJs or impending financial claims being made against me”), this phrase means either a legal claim or a claim arising from a legal obligation to repay debts immediately which would give rise to a County Court Judgment or some other form of legal enforcement. If this statement is given a wider construction, it would include debts such as a mortgage in arrears of any amount (which is a loan secured on a property, but where the full sum usually becomes payable where arrears arise), a credit card debt (as a result of the balance not being cleared each month), or even outstanding Council Tax charges. The Respondent’s Policies[27]The Respondent’s employment policies were referred to in an Employee Handbook. These policies were not available on an intranet. We heard no evidence that staff were briefed about them. We found that the Claimant and Mr. Friend did not receive a briefing or a copy of the Personal Relationship at Work Policy within the Handbook (p2108H).[28]In any event, we found that breaches of this policy were tolerated, rather than enforced, by the Respondent. We heard of various relationships between staff. As a further example, Mr. Gee alleged that he had a meeting with Ms. Xi and Mr. Trott due to their relationship; but we found that Ms Xi approached Mr. Gee because of her visa difficulties (she was a Chinese national), and this was the trigger for the raising of the policy by Mr. Gee.[29]There was a rumour amongst the staff in the London office that there was a romantic relationship between the Claimant and Mr. Friend. In the experience of this Tribunal, such rumours are common within a workplace, often with no substance. There was no allegation by the Respondent of such a relationship at the time that the Claimant was awarded pay-rises and promotion, so the suggestion in the Respondent’s evidence that these may have been tainted by the relationship is a weak, retrospective, and not credible attempt to undermine the Claimant’s performance and ability.[30]Mr. Pusco’s email text statement at p.647 (alleged sent on 28 December but received by the Claimant on 8 January 2018) was inconsistent with that of the Respondent witness evidence on this issue. This text stated that there was a relationship between Mr. Friend and the Claimant which was known by many staff, but the witnesses for the Respondent referred only to rumours of a relationship until December 2017. Mr. Gee stated that prior to the events of December 2017, the knowledge of their relationship was no more than a suspicion and the subject of office gossip (paragraph 14 Witness Statement).[31]Despite Mr. Pusco’s allegation that this was not hidden, no attempt was made to investigate whether one did exist nor to enforce the alleged Relationship at Work Policy if it did.[32]In respect of the Personal Relationship at Work Policy, in the case of one couple, Mr. Gee was aware of their relationship for two years before the male employee formally told him about it; there was no evidence of anything happening to stop the relationship in that period. In addition, Mr. Boissiere also had a sexual relationship with someone within his line management; the Policy was not raised in that instance either.[33]The Tribunal concluded that it was likely that Mr. Friend and the Claimant had a close working relationship, which developed into a sexual relationship during the latter part of 2017.[34]The Respondent also relied upon its Authorised Absence Policy, and specifically the “Tied Posts” part: see p.2074. Mr. Gee’s evidence (paragraph 19 witness statement) stated that the Policy made clear that individuals in tied posts should not be absent from the “UK office”. The Claimant and Mr. Friend were cross-examined on the basis that the Policy prevented them being away from the London office at the same time.[35]We rejected the Respondent’s case on this point as not credible and unrealistic. Both had been on several business trips together, with the approval of the Respondent. Moreover, the Respondent knew and accepted that the Claimant and Mr. Friend would need to travel on Compliance-related business trips together, demonstrated by the Compliance Calendar adduced by the Claimant, which was signed off in advance by the Board. The Claimant was, after all, managing the Compliance function across all the offices (that is, both within and outside the UK).[36]We accepted Mr. Friend’s evidence about the need for them both to travel on such trips. We noted that the Tied Posts Policy is directed to absence away from work (such as holidays); it does not apply to the situation where the Compliance Director and/or the Claimant are working in another office of the Respondent.[37]Mr. Gee’s oral evidence shifted the Respondent’s case on this issue, which made it less, not more, credible. He said the words meant out of an office, not the London office.[38]The Respondent failed to establish any breach of the Authorised Absence policy, nor that, by Mr. Friend and the Claimant (the CF10 and CF11 Compliance function officers) going on a business trip to Dubai for Compliance purposes, the Tied Posts Policy would be breached.[39]The Handbook also provided that staff should not abuse the internet whilst working for the Respondent: p705.[40]We accepted the Claimant’s evidence that she was not running an eBay account from her computer. There was no direct evidence that she was running such an account from her computer; we understand this allegation to be one that she was using her computer to buy and sell items, but the Claimant’s evidence contradicted this. It was an allegation without reasonable grounds. Moreover, the absence of any direct evidence that she was running such an account led us to infer that the Respondent held no genuine belief in this alleged misconduct.[41]In respect of the music files found on her computer, it was alleged in the Grounds of Response (paragraph 67) that these were downloaded in breach of the Respondent’s policies. The natural reading of this is that the downloading was done by the Claimant. However, we found that the Respondent’s case shifted during evidence; in crossexamination, Mr. Gee did not state that these were downloaded by the Claimant, but that they were transferred onto the Respondent’s system. Indeed, we found that his email at p.1360 tended to show that he had no reasonable grounds for his allegation that the music files were illegally downloaded; he tried to reverse the burden of proof by asking the Claimant to prove that they were not illegal downloads.[42]There was no documentary or expert evidence, whether in the form of a report from the IT department of the Respondent or otherwise, to show that these were “illegal” downloads, nor when they were added or accessed; nor was it explained why it was suspected that the Claimant had transferred these onto her computer, nor when they were accessed, nor was it explained why or how the Claimant might be criminally liable. We found this allegation so vague and unparticularised as to demonstrate that the Respondent had no honest belief in the allegation and no reasonable grounds for the belief. This allegation was also inconsistent with the Respondent’s own case, which was that documents on its IT systems belonged to the Respondent. In any event, we accepted the Claimant’s evidence that she could not have downloaded such files because she did not have the system administrator’s password. Treatment of women by the Respondent[43]In 2013, whilst intoxicated at a Christmas party, the Director of Risk, Mr. Draghi, had referred to women as “meat” in a statement made to the Claimant. He was General Manager for the Bulgarian operations.[44]Mr. Pusco, whilst at the Bulgarian office, stated, on an occasion when the Claimant was present, that “women should stay at home and cook”, in the context of complaining about the length of maternity leave in Bulgaria.[45]The Claimant alleged that in 2017, Mr. Pusco displayed an image of an advertisement by Aston Martin for pre-owned cars. The advert (p.63) contains a woman wearing limited clothing in a particular pose. On a fair reading of this advert, the Tribunal found that it was insulting, offensive, and degrading to women. On showing this advert to the Claimant and others at the London Office, Mr. Pusco stated that the Respondent’s marketing needed to be “sexy” and that sex sells.[46]We preferred the evidence of the Claimant and Mr. Friend to that of Ms. Patel about this image and when and whom it was shown to. At first, Ms. Patel stated that she had seen the image before, but could not say if this was inside or outside the Respondent’s office. The final position in her evidence was that she was not sure if the advert at p.63 was familiar. We found that her evidence was inconsistent with the offensive nature of the advert. We doubted that, from 2017 until now, a woman would forget the image or the offensive nature of it, nor where they had seen it. We formed the view that Ms. Patel was anxious not to upset one or both parties by her evidence and tailored it accordingly.[47]In about February 2017, the Respondent signed the “Women in Finance Charter”, which had been proposed by its marketing team (p.155). Given that it was signed, it is not correct, as Mr. Gee asserted, that only initial inquiries had been made. We accepted that the Respondent withdrew from it because it was not prepared to implement the pledge that linked salary and bonuses to gender diversity targets (p.187A). The Tribunal inferred that the Charter had been signed to for publicity purposes, to market the Respondent, because after the marketing article at p.187, the initiative was withdrawn from. The Respondent had withdrawn because Human Resources, specifically Mr. Gee, had decided that it was not feasible to meet the pledge made. We inferred that this was because it was likely to cost money which the Respondent was not prepared to commit to. Events 1-2 June 2017[48]We accepted the Claimant’s evidence about events on 1 – 2 June 2017 at paragraphs 25-30 of her witness statement.[49]On 1 June 2017, the Claimant was contacted on a Skype call by Mr. Pusco. He asked the Claimant to open a real money professional account in his name, and stated that she must keep the request confidential. He said he wanted to test the customer experience of account opening. The Claimant proposed a “demo” or “Virtual” account, because this was the usual method of testing, but was told that it must be a real money account which will be funded. The Claimant believed that this request made no sense, because in order to test the customer experience of account opening, one needed to go through all the stages that the client goes through. By requesting the Claimant to open an account for him, the Claimant believed that Mr. Pusco was trying to bypass all these stages.[50]The Claimant’s role included upholding the policies within the Respondent’s own Compliance Manual. The request for a real account was outside the Personal Dealing Policy. To open an account, the Claimant would have to breach permissions and systems controls, because accounts are not opened by the MLRO alone.[51]The Claimant informed Mr. Friend of her conversation with Mr. Pusco, stating that the request was clearly not for testing the “customer experience”, and that it was likely to be a breach of the Respondent’s Personal Dealing policy and create a severe conflict of interest.[52]The Claimant was informed that this was not the first attempt by Mr. Pusco to open such an account.[53]The Claimant’s account of events was corroborated by the evidence of Mr. Friend and, to some extent, Mr. Scarabino. In addition, her account was corroborated by the contemporaneous documents including a Skype conversation between Mr. Friend and Mr. Scarabino which included (p.182-183): a discussion of the fact that Mr. Pusco had tried to open a professional client account with a paper application because his email was already registered; that this would be their only professional client account; if he succeeded, Mr. Scarabino recognised that this would mean that the firm could then use Mr. Pusco’s funds for hedging; and Mr. Friend considered that Mr. Clowes would find the proposed application laughable.[54]The Skype conversation is particularly revealing. It demonstrates that Mr. Pusco’s request was very inappropriate, being contrary to the Respondent’s own Compliance policy and FCA obligations. The Skype conversation shows that there would be a conflict of interest if Mr. Pusco had an account and traded. He could use his knowledge of the Respondent’s position to make a profit, which could in turn be leveraged up to circumvent capital adequacy rules. In evidence, Mr. Friend explained that were he to do this, it could be fraud.[55]Mr. Friend and Mr. Scarabino took care to construct an email designed to stop Mr. Pusco opening an account: see the conversation at p.184. The email itself is at p. 187.[56]Mr. Pusco responded by email at p.186, accusing the Claimant, Mr. Friend and Mr. Scarabino of misinterpreting his clear messages. He stated that his reason for opening the account was to test the customer journey in person. This email describes the Claimant, Mr Friend and Mr. Scarabino as “panicking about …insider dealing!”[57]The Tribunal inferred from the email response that Mr. Pusco was angry at the Claimant, Mr. Friend and Mr. Scarabino, a point confirmed by Mr. Scarabino. We found it was likely that his anger was because his request to open a real account had been blocked. The Tribunal also inferred that he knew that the Claimant had not kept his request confidential, but that she had disclosed the conversation to Mr. Friend.[58]The Respondent’s evidence before us on this issue was not credible. Mr. Scarabino stated that he had misunderstood, and did not fully appreciate that Mr. Pusco wanted an account purely to test the customer experience. We rejected this for several reasons: 58.1. There was no evidence that Mr. Pusco had tried any other method to test the customer experience. As Mr. Scarabino noted in the Skype conversation on 1 June 2017, a Virtual account and test environment would have been sufficient for Mr. Pusco’s purposes; and in his statement, he noted that he did not see any benefit in a real account being opened. 58.2. Had the request from Mr. Pusco been made in good faith, we would have expected him to open an account with the controls proposed by Mr. Friend in the email referred to (at p.107). Instead, he considered the matter “closed”. 58.3. Mr. Scarabino’s witness statement evidence (paragraph 5) had a markedly different tone to the Skype conversation. In his statement, he stated that there was a “possibility that it could be perceived as a conflict of interest”. The Skype conversation shows that both Mr. Friend and Mr. Scarabino well knew that it would have created an actual conflict of interest. 58.4. The documentary evidence does not suggest the “misunderstanding” claimed by Mr. Scarabino. The Skype conversation shows that both Mr. Friend and Mr. Scarabino were concerned about Mr. Pusco trading with the account.
Relevant Law
[59]Mr. Scarabino stated that there were controls in place so that the other departments, like Finance, would have become aware that Mr. Pusco was opening an account. But Mr. Pusco was asking the Claimant to open the account confidentially, which would likely circumvent the controls.[60]We have considered how this matter is dealt with by Mr. Gordon in his report at p.1454ff, adduced by Mr. Gee. The Tribunal found this report lacked input from the Claimant or Mr. Friend (who had resigned and who was not approached by Mr. Gordon). The report was self-serving for the Respondent in several respects. For example, at p.1456, Mr. Gordon concluded: “I cannot find any reason to conclude that Mr. Pusco’s request was, as Lana states, “unacceptable”. Mr. Pusco’s request seems to me to be perfectly reasonable. It seems to have been made with the best and the most honest of intentions; he wanted to test the customer’s experience.”[61]We found this conclusion wholly inconsistent with Mr. Gordon’s experience in Compliance, the FCA rules as to Capital Adequacy (as explained by Mr Friend in evidence), and the Respondent’s policy, in the Compliance Manual, against self-dealing. It must have been as obvious to Mr. Gordon as it was to this Tribunal that by opening a real trading account Mr. Pusco would create a conflict of interest. Moreover, the account that Mr. Pusco wanted to open would have been the only account that the Respondent had of this nature; the Respondent did not have a single “professional” client, so the Claimant and Mr. Friend found Mr. Pusco’s explanation for wanting the account to be implausible. He had sought a professional account; the process for such a new client would have been similar but different to the process for the rest of the customers (with an extra application to complete if shown to be professional). These are amongst the reasons why we found Mr. Gordon’s report not to be reliable, and that certain conclusions, such as this one, were not credible. The conclusion that the Claimant was responsible for a badly drafted Compliance Manual (see below) is another which we found not to be credible.[62]Mr. Gordon concluded (p.1457) that Mr. Pusco could have opened an account with “some simple control mechanisms”. The Claimant’s duties included ensuring the Respondent complied with its own Compliance Manual and was FCA compliant. In that context, we did not accept that she could allow the breach that would have occurred by opening a real account for the CEO which could be funded.[63]Mr. Gordon proceeded to conclude that the Compliance Manual was badly written, and that a badly-written Compliance Manual was worse than none at all. Mr. Gordon continued by concluding that the Claimant was one of the owners of the Compliance Manual (in her CF11 role) and therefore to blame for not correcting the Compliance Manual’s “weaknesses”. He ignored that (or failed to investigate whether) the Claimant had inherited the Manual which we understood to mean that it was in place when she joined. We heard no evidence that she had written it, nor that she had been instructed to review or amend it at any time.[64]These conclusions are inconsistent with the purpose of Mr. Gordon’s role, which was as a grievance investigator at this point, not someone investigating the Claimant’s conduct or performance. It contains an argument that had never been made to the Claimant, yet proceeds to blame the Claimant (and Mr. Friend). The Tribunal found these conclusions very unconvincing. We found that the Compliance function would advise on Compliance matters if any aspect of the Compliance Manual were unclear.[65]Overall, we found the above conclusions of Mr. Gordon to be a retrospective attempt to attack the credibility of the Claimant as a Compliance professional. We rejected these criticisms of the Claimant, finding them not justified on the facts. We inferred from this that the report of Mr. Gordon was prepared as a tool to attack the Claimant’s credibility in part because of the protected disclosures contained within the grievance and in part because of anticipated litigation from the Claimant given that the decision to dismiss her had already been made.[66]In any event, we found that Mr. Pusco, given his role as CEO of this type of company, did not need a Compliance Manual to know that he could not open a real trading account; this would have been clear to him from the outset and from the refusal of his earlier request, which is probably why he had asked the Claimant to do this confidentially. Summer 2017[67]The Claimant was ignored for several weeks after the events of 1-2 June 2017 by Alex Pusco, who went straight to Mr. Friend, Compliance Director, rather than raising matters with the Claimant.[68]In August 2017, the Claimant worked during her annual leave. This was to complete an FCA request for information on Anti-Money Laundering (“AML”) systems and controls that arrived just before her leave began. The request followed a “Dear CEO” letter sent by the FCA in 2016, “Client take-on review in firms offering contracts for difference products” (p.2464 ff). The Claimant submitted the response on the last day of her leave. The submission was accepted by the FCA. 7 September 2017 meeting[69]Mr. Pusco wanted his Sales Team to bring in more clients, to maximise profits.[70]Mr. Boissiere was Head of Sales and a director. From or about September 2017, he had to account to Mr. Pusco, CEO, as to why sales did not meet expectations.[71]Mr. Boissiere raised with Mr. Pusco the issue of delayed withdrawals, which he alleged was bad publicity because clients were complaining publicly (such as on forums). Mr. Boissiere was not targeting the Claimant in doing so, but he was pointing out to his CEO that Compliance was getting in the way of maximising sales. In short, Mr. Boissiere was blaming Compliance for delayed withdrawals.[72]Delayed withdrawals occurred when AML analysts and the Claimant believed that suspicious activity was taking place with deposits or withdrawals. Compliance would then conduct an assessment, and, subject to the conclusions, may report the client and transaction to the National Crime Agency (“NCA”) by a Suspicious Activity Report (“SAR”). The NCA then had 7 working days to object or provide authorisation.[73]A Compliance officer in the CF11 role has a duty to disclose whether they know or suspect, or have reasonable grounds for doing so, that a person is engaged in money laundering. Breach of this duty is a criminal offence.[74]Details of delays due to SARs could not be explained by Compliance to other teams due to the risk of tipping off the client, which would breach FCA regulations.[75]We found that there was a gap between the expectations and understanding of the duties and responsibilities of the Compliance officers by Mr. Boissiere in Sales, and the proper role of the Compliance function and Compliance officers working in the business. For example, Mr. Boissiere criticised the Claimant’s response on 6 September (p205) as unhelpful, in respect of a delay of one month in one case. We found that the response was the result of the Claimant performing her role properly.[76]The issue of delayed withdrawals was raised with Mr. Friend, rather than being raised directly with the Claimant, who was the MLRO. Mr. Friend raised them with the Claimant, who asked for examples, explaining that most delayed withdrawals were due to SARs. This is set out in a Skype conversation at p.207, in which the Claimant explains that there was a good reason why Compliance could not be more specific about delayed withdrawals. She explained to Mr. Friend: “you can mention that serious retraining will be completed as no one in the front office reports properly or seems to grasp what needs to be reported even when clients ask them specifically how to launder”[77]On about 7 September, Mr. Boissiere requested staff to provide examples of delayed withdrawals. These were forwarded to Mr. Pusco, to demonstrate alleged delay by Compliance and to explain clients’ complaints (emails at p.208-209). These emails were then forwarded to Mr. Friend, by Mr. Pusco (p.210). Mr. Pusco blamed the delays on the Claimant for being off work (see p.207), when the majority of the delays were actually caused by SARs being raised.[78]This was the first time that delayed withdrawals were raised as a problem created by Compliance. This was despite the fact that the Respondent did not challenge before us evidence that the Compliance department did not have adequate resources to work any quicker. We accepted the evidence of Mr. Friend that the number of clients was increasing and that the type of client mean that they were higher risk clients in AML terms, and that they raised more “red flags” (as he put it).[79]A meeting took place on 7 September 2017, with Mr. Friend, the Claimant, Alex Pusco and Mr. Boissiere. The Claimant gave as much detail as she could disclose, such as the majority of delays were due to external reports, but also where a delay was caused by Finance. The Claimant was questioned in an irritable way by Mr. Pusco, causing the Claimant to respond with her concerns that the detail should not be shared with parties outside Compliance. Mr. Pusco ignored these concerns and directed the Claimant to involve Mr. Boissiere in every SAR.[80]Mr. Pusco did not act in the manner described because of the Claimant’s gender, nor because of the protected disclosure on 1 June 2017. This is evidenced by the fact that his challenge extended to Mr. Friend and across Compliance. Mr. Pusco’s actions were driven wholly by a desire for greater profitability, because he had formed the view that Compliance steps were putting sales at risk.[81]After the meeting, the Claimant disclosed to Mr. Friend that she was anxious about unrelated staff, such as the Head of Sales, being involved in the SAR process and the possibility of tipping off, and breach of the SAR regime in general. She stated that she would not be sharing the SAR or any suspicious activity datas with the Head of Sales or any unrelated party because this was a breach of the FCA rules and regulations.[82]The Claimant believed that this disclosure tended to show a breach of the obligations under section 333 POCA and section 21D of TACT against tipping off persons unrelated to the Compliance decision to send a SAR (These obligations are referred to by the Claimant in the response to the FCA request completed in August 2017, p.2476). We accepted her evidence about this, preferring it to the relevant passage of the report by Mr. Gordon, who was not present for cross-examination and whose approach to the matters above of 1 June was unreliable.[83]The Tribunal found that Mr. Boissiere’s witness statement introduced a shift in the Respondent’s case. He contended that the delays appeared to be the product of inefficiency or inaction by Compliance, and that this could tip off the client. This is not mentioned in the ET3; the Grounds of Response made various allegations including that Mr. Pusco and Mr. Boissiere were concerned that the Claimant’s decision-making was “becoming increasingly arbitrary and may have become a tool that the Claimant was using to exert unfair power over her colleagues.”. We found that Mr. Boissiere’s evidence that delays could tip off the client was not reliable; this allegation was never raised in the ET3 and experienced investors would understand the regulatory regime and may well not be surprised by delays which could be caused by usual checks on transactions done by the Respondent (or its competitors) in-house.[84]There was no evidence to support the allegation of exertion of “unfair power” (whatever that was intended to mean) referred to in the ET3, which led the Tribunal to question why it was made. In the absence of explanation or evidence, the Tribunal inferred that this was an attempt to damage the credibility of the Claimant made without any factual basis.[85]Moreover, the Claimant and Mr. Friend understood the need for training to make the Sales Team better at understanding Compliance requirements. This finding is contrary to the Respondent’s pleaded case; the Claimant was making attempts to increase understanding, not to exert any power held by her.[86]We accepted Mr. Friend’s evidence about the number and type of clients that the Respondent was attracting: the number of clients had increased substantially and the clients were of higher risk. The Respondent had not prepared for this.[87]The Tribunal considered the Claimant’s evidence that she had complained to Mr. Friend on 7 September 2017 that, if she was a male MLRO, she would not have been treated in this way by being forced to disclose SAR information. We found that the Claimant was mistaken about this, even though she believed that she made such a statement. Mr. Friend suspected at the time that the Respondent’s approach to this matter was due to ingrained sexism; but we found that he formed this view himself, and that there was no evidence from him of such a statement made by the Claimant on 7 September 2017. The Claimant’s own evidence (paragraph 43 witness statement) is not clear about what was said to Mr. Friend, although we fully accept that the Claimant did raise with him her concern about unrelated staff, such as the Head of Sales, being involved in the SAR process. MFID and MFIR[88]Between March and December 2017, the Claimant provided guidance and advice on the implementation of Markets in Financial Investments Regulation (“MIFIR”), which arose from the Markets in Financial Instruments Directive II (“MIFID II”). All teams, and their directors, were informed that MFIR reporting was due to come into force in January 2018: see email 2 March 2017 (p316), which attached a description of the information now required to be collected in the personal data collection area.[89]The Claimant and the Compliance department provided advice on Compliance matters, but were not involved in operational matters. The Claimant was not the project manager for the implementation of MIFIR or MIFID II at any time.[90]Moreover, as demonstrated by the email from Mr. Nikolov, Risk Manager, of 2 March 2017, the Risk Team was managing the project of implementation in March 2017. The Risk Manager did not expect Compliance to collect the data now required, nor did he expect the Claimant to be responsible for this task: see p317. This email asks Compliance for guidance in defining the new fields, for clients to populate with required identification codes. The Claimant replied: see her email 21 March (p315).[91]Subsequently, a project manager, Georgi Stoev, appeared from the correspondence to have taken over the project: see his email 17 May 2017, p.309.[92]The quarterly AML/TCF (Anti-Money Laundering/Treating Customers Fairly) Meeting Minutes, from 6 July 2017, were sent to the Board of the Respondent, including Mr. Draghi. By these minutes, the Board were expressly informed that the new regulatory rules of MIFID II and MIFIR needed to be implemented by 3 January 2018. These minutes stated that the number of data fields was increasing to 81 (from 23).[93]At the subsequent AML/TCF meeting on 13 October 2017 (minutes p.265-267), the Claimant and Ms. Patel repeated that the implementation date for MFIR and MFID II was 3 January 2018. The Claimant warned that the Sales Team had not obtained the information required for Compliance, and warned that clients who did not provide the information now required would have to have their accounts suspended until the information was provided. Mr. Boissiere disagreed with the comments that the Sales team was responsible. We found that there was a robust exchange of views at this meeting.[94]On 26 October 2017, Ms. Patel was invited into a meeting with Mr. Draghi, Mr. Boissiere and Mr. Gho. Subsequently, the Claimant was invited into the meeting. Mr. Draghi asked what the “LEI issue” was. This related to MIFIR or EMIR (which have the same practical effects because LEI refers to the Legal Entity Identifier required for reporting trades for corporate clients). The Claimant stated that the Risk Team was dealing with implementation of this, and that she was assisting. Subsequently, Mr. Draghi lost his temper and shouted at the Claimant, the gist of his words being that she was meant to be calling clients to collect the data. On responding that it was not part of her Job Description, Mr. Draghi shouted at her again.[95]We accepted the evidence of the Claimant that she was shouted at, which we find corroborated by the interview given by Ms. Patel to Mr. Gordon, and by Mr. Draghi’s own interview which stated that the meeting was “a kind of verbal warning meeting”, despite the fact that the Claimant had no notice of any disciplinary hearing, no written allegation, and despite the fact that Ms. Patel denied this was the case.[96]We found that the Claimant was shouted at because Mr. Draghi was frustrated because of the realisation that the Respondent had not up to that date collected necessary data, and that the project manager for it lay in his team, making it Mr. Draghi’s responsibility. The cause of the Claimant’s treatment was not the protected disclosures made on 1 June or 7 September 2017, nor her gender. The cause was a knee-jerk reaction from Mr. Draghi, shifting the blame onto the Claimant. This meeting also showed that Mr. Draghi was siding with the Head of Sales, Mr. Boissiere, against the Claimant.[97]The Claimant was very upset and embarrassed by this treatment. On 26 October, she reported what had happened in the meeting to Mr. Friend. We find that she did not state to him that her treatment was because of her gender, because Mr. Friend addresses only the MFIR data collection complaint in his subsequent email response. In any event, there is no evidence that Mr. Friend communicated such a comment to any other member of the Respondent management.[98]The Claimant’s call led to Mr. Friend’s email in her defence of 27 October 2017, with the relevant email train from p.294ff.[99]Contrary to Ms. Patel’s evidence, the Tribunal found that Mr. Draghi wanted to enlist Ms. Patel to do a project manager role in data collection and GDPR implementation work. Mr. Friend blocked this, which is apparent from the reply from Mr. Pusco (p294). We found Ms. Patel’s evidence to be unreliable in other respects; there was no detail provided of the alleged failings of the Claimant and Mr. Friend, alleged to cause extra work after they left. It was inconsistent with this evidence that neither Mr. Friend nor the Claimant had been subject to any form of performance management or performance warning.[100]This email from Alex Pusco is revealing. He does not claim that the Claimant was the project manager at any time. He blamed the Claimant for not having “raised a flag a while ago when she noticed the project wasn’t going anywhere with Georgi.”[101]Mr. Draghi blamed the Claimant for not instructing the Account representatives to request the data. After the meeting, he told Mr. Friend that the Claimant was a problem and needed to leave.[102]We concluded that there was a failure in communication within the Respondent business as to who was responsible for collecting the data for the MFIR implementation.[103]Mr. Pusco blamed the Claimant specifically for the failure to communicate (not simply the Compliance team): see his email of 29 October (p.307-308). We find that this criticism was unfair and unjustified on the evidence. We found that the fault in the implementation of the MFIR implementation project lay with the Risk Team, which was in reality responsible for operational matters. Ultimately, the responsibility was that of Mr. Draghi.[104]We rejected the findings of Mr. Gordon in his report at p.1457-1460. Once again, he treated the grievance process as an opportunity to target the Claimant’s performance. He also alleged serious misconduct. We found his approach to be inconsistent with the purpose of a grievance investigation, where the grievance had been raised by the Claimant, and inconsistent with the absence of any disciplinary proceedings or performance management steps (in contrast to a string of bonuses and pay-rises). Also, we found that certain findings by Mr. Gordon were made on a limited view of the evidence, owing to a lack of proper investigation. For example, he stated that the Claimant made “excuses” based on a “historic and inconsequential email”. This is an inaccurate compression of a number of facts, which when viewed in full justified the Claimant’s position. Moreover, certain findings were made without any evidential basis; Mr. Gordon found that the it was “likely” that the Respondent had suffered reputational damage by leaving the collection of data so late; but he gathered no evidence to support this finding.[105]Further, Mr. Gordon missed out reference to certain evidence that supported the Claimant’s case, such as emails demonstrating that she had explained the requirement of MIFIR and EMIR in March 2017, evidence that the Head of Sales and the CEO were questioning SARs as early as September 2017, and that the Respondent did not take into account of evidence from certain witnesses, such as Tommy Power, AML analyst, and Bhav Patel. November 2017[106]On 20 November, following a complaint from a client about a delayed withdrawal, Mr. Evangelista, the International Desk Manager, complained to the Head of Sales, Compliance, and the CEO about the delay.
Conclusions
[107]The delay was caused by a SAR being submitted to the NCA. On 21 November, Mr. Friend pursued the matter with the Claimant. Subsequently, he gave a response, explaining that Compliance could do nothing to resolve the case, and by law had to wait (p396).[108]On 21 November, we found that the Claimant did not complain to Mr. Friend that her judgment had been questioned because she was a woman. This is not referred to in her witness statement (where events on this date are covered in paragraph 58), even though we accept that she honestly believed that she had raised this complaint. We note that she felt under a high degree of pressure at the time and had to attend Accident and Emergency (“A and E”).[109]After her discussion with Mr. Friend, the Claimant started to have chest pains. The Claimant went to A and E, where she was advised to see her GP and rest. After leaving A and E, the Claimant returned to the office, where she had a further panic attack. Mr. Friend called an ambulance.[110]On the following day, the Claimant had abdominal pains, and went to A and E again. She was advised to see her GP about stress and anxiety at work.[111]On 22 November, there was a Skype conversation between Mr. Friend and Mr. Pusco. We accepted Mr. Friend’s evidence and the rationale for the submission of the SAR to the NCA. Mr. Pusco requested to know why a SAR was made. He accused Compliance of “blocking” the withdrawal. We found the response of Mr. Pusco in that conversation to be an over-reaction. There was no evidence that there had been anything other than the proper performance of their duties by the Claimant and the Compliance team, who had received an internal suspicious activity report from the Italian desk.[112]Given the complaints that the Claimant had received as MLRO, the Director of Compliance and the Claimant decided to engage an external training provider to conduct training for the CEO and other staff. They met a training company, who prepared a schedule addressing the main issues raised by the Claimant, specifically her concern about unrelated parties requesting information about SARs, and delayed withdrawals and the tipping off risk. This is evidenced by the email at p.421A-B.[113]The Management Engagement exercise with the Respondent’s staff included a consensus that the Claimant and Mr. Friend applied regulatory requirements “too strictly” in comparison with competitors, putting the Respondent at a competitive disadvantage. (425-426). There was no evidence that the comments elicited in this exercise were ever raised with the Claimant or Mr. Friend, nor evidence of how the contributors would be able to make such a value judgment given the differing nature of clients across competitors.[114]On 27 November, the Claimant saw her GP. She was provided with a sick certificate for two weeks, the stated reasons being stress and anxiety. The Claimant was also referred to a gastroenterologist. However, the Claimant attended work on 28 and 29 November. Dubai Financial Services Authority scheduled meeting, December 2017[115]In September 2017, the DFSA scheduled a risk assessment of the Respondent’s Dubai office for November 2017 (subsequently revised to December 2017).[116]Each such risk assessment in Dubai was handled by the Compliance Director and sometimes the Claimant, together with branch staff. The Claimant had previously drafted regulatory documents and attended meetings with the DFSA. Upon successful completion of the licensing of the Dubai office, and dealing with the regulator, the Claimant was awarded a bonus of £7,500, instead of the usual £5,000.[117]There was a lot of work to do in preparation for the visit in December 2017. The oral evidence of Mr. Friend was corroborated by the contemporaneous documentary evidence (at p.216 and 221).[118]The trip, which was from 30 November to 10 December 2017, was approved by Mr. Pusco for both Mr. Friend and the Claimant in July 2017: see p.189. In September 2017, the Claimant and Mr. Friend were issued with an Event number for accounting purposes by Mr. Pusco’s PA. Flights were booked and meetings arranged. The Claimant began preparatory work including ensuring paperwork would be ready.[119]It was apparent from the documents that up to at least 26 September, it was understood by the Respondent that both the Claimant and Mr. Friend were permitted to attend Dubai for the DFSA visit: see Skype conversation at p.221, showing the plan was for them to stay in the Respondent’s flat, and the email to Alex Pusco’s PA.[120]The Tribunal accepted Mr. Friend’s evidence that Alex Pusco changed his mind about whether the Claimant should attend on the work trip to Dubai.[121]We find that Alex Pusco did indicate to Mr. Friend that the Claimant should not attend the assessment in Dubai, but there was no specific instruction to him that she must not attend in any circumstances. Had there been, we find that it is likely that this would have been in writing, because Alex Pusco was reversing an earlier decision.[122]There appears to be no good business reason for Alex Pusco’s preference that the Claimant should not attend; the “Tied posts” Policy is no such reason, given that it does not mean what the Respondent contended before us that it meant. We find that Alex Pusco changed his mind because of the complaints about Compliance that had been made about delayed withdrawals (particularly the recent examples alleged to involve the Claimant) and by Mr. Draghi about the Claimant (due to the MIFIR matters set out above). In essence, Mr. Pusco’s change of mind was due to targeting of the Claimant for matters which we find that she was not responsible for.[123]The Claimant did not know that Alex Pusco had stated his preference that she should not go on the Dubai visit. Up to 30 November 2017, she knew only that it was still to be decided whether only Mr. Friend would go. We preferred the evidence of Mr. Friend and the Claimant over that of Ms. Patel, because their evidence was more reliable and they impressed us more as witnesses than Ms. Patel. She claimed to have overheard a conversation that they were discussing who would go, because Mr. Pusco had said only one could go, but this was unparticularised and had no corroboration to support it; and, in any event, Mr. Friend accepted in evidence that he decided at short notice that he needed the Claimant to attend and requested the Claimant go with him. Also, we preferred the Claimant and Mr. Friend’s evidence over the hearsay evidence of Ms. Gavrilescu in her email of 8 January 2018. We noted that she was the PA to Alex Pusco and would be unlikely, given the evidence of his personality and strength of feeling about the Claimant, to state anything other than the company’s line.[124]On 30 November, we found that the demands of his Compliance role meant that it was too much for Mr. Friend to manage the DFSA visit without assistance from Compliance. He had just had a meeting with the Bank of England and a Board meeting. We found that he invited the Claimant to go to Dubai with him because he needed help, despite the fact that she was absent sick. We found that Mr. Friend relied on the Claimant’s assistance in respect of Compliance work.[125]Mr. Friend decided, as Compliance Director, that he required the assistance of the Claimant. He asked the Claimant to accompany him on the trip because he had a close working relationship and personal relationship with her. We found that no other employee could do the work required for him.[126]Mr. Friend believed that he had the authority to make this decision. Also, he knew of the Claimant’s health and was concerned about it.[127]The Absence Policy provided that an employee could be disciplined if absent sick, but not in fact sick: p701. It does not state that an employee could be disciplined for working when absent sick.[128]We accepted the Claimant’s evidence that she took medical advice on whether she could travel. After scans, she was informed that it was safe to do so. The Claimant travelled to Dubai with Mr. Friend.[129]The Respondent’s flat was occupied when they arrived. The Claimant went to stay in a friend’s flat, and Mr. Friend booked a hotel room.[130]The Claimant worked during the visit as set out in her witness statement, including by preparing the visit report. This is corroborated by the emails that she sent during the period of this visit. We found that she worked from the hotel, using the business centre. She did not attend the office in Dubai, due to her state of health, and there was no need for her to do so, because the DFSA assessment went well.[131]Mr. Gee had produced a document on the morning that he began his evidence, and stated that he had carried out a search on the server, which showed that the Claimant had sent no emails after 30 November 2017, so the Claimant could not have been working on the visit in Dubai. The Tribunal found this evidence to be unreliable. We had difficulty in understanding how Mr. Gee could believe that this evidence was accurate when, on the following day of the hearing, the Claimant produced work-related emails that she had sent over that period: see p.318Nff.[132]Subsequently, the following morning, Mr. Gee alleged that he had spoken to someone in the Information Technology department of the Respondent during the overnight adjournment. He gave hearsay evidence from the unspecified IT worker that the only way that his search of the server could not have found these emails was if the Claimant had deleted them. We found that evidence of Mr. Gee to be unreliable (at best) for the following reasons: 132.1. This evidence was obtained despite the fact that Mr. Gee was giving evidence when he had made the alleged enquiry, and had been warned not to discuss his evidence; when this was raised with him by the Employment Judge, he said that he was not discussing his evidence because he did not state the purpose for which he wanted the advice from IT. But we found that it was likely that the IT worker would have known that the reason related to this litigation, given that the Claimant had left the Respondent’s employment over 12 months earlier. In any event, aside from that, this information was allegedly obtained from a worker or employee within the Respondent, with a view to adducing it in evidence and that this was done in breach of the direction of the Tribunal not to discuss his evidence. 132.2. This was an attempt to give hearsay expert opinion evidence, produced without written evidence of the instructions provided, without the identity or qualifications or experience of the maker of the opinion being identified, and without any warning or notice. 132.3. From the experience of the Tribunal, a reasonable search for emails would have included a record of any that were actually sent, and later deleted. 132.4. In any event, there was no evidence of fact that the Claimant had deleted these emails (and this was never put to the Claimant). We found it unlikely that she had deleted them, because there appeared no reason why she would have done so.[133]We heard that the Respondent suspected that the Claimant had travelled to Dubai with Mr. Friend. Mr. Gee engaged in surreptitious attempts to find out if the Claimant was in Dubai and made surreptitious enquiries of the GP surgery to establish whether the sick certificate was genuine. In effect, this was a covert disciplinary investigation. We were surprised that, as a HR officer, Mr. Gee did not try the most obvious route: by asking the Claimant or Mr. Friend directly.[134]The reason for this failure appeared to be the Respondent’s belief that the Claimant had used her sickness as a ruse to travel to Dubai, because, so it believed, she knew that the CEO had not wanted her to attend. We found that this suspicion arose because the Respondent was looking to force the Claimant from the business at this time, due to the perception of the directors in the areas of the business other than Compliance that she was largely responsible for delayed withdrawals and the MFIR implementation issues. As a result, the Respondent was looking for a reason why the Claimant should leave the business. It jumped to the conclusion that she had committed gross misconduct.[135]Mr. Clowes alleged that the Claimant had misled the Respondent by her silence. We find that she did not do this. The Claimant had a close relationship to Mr. Friend at the time of his request that she accompany him on the business trip to Dubai. From the evidence that we have heard – such as evidence that she worked on holiday – the Claimant was conscientious and it is likely that she wanted to help him make the DFSA visit a success when he asked her to accompany him.[136]There were no reasonable grounds for the suspicion that the Claimant had committed gross misconduct. After all, the Claimant did work for the Respondent whilst in Dubai, having been requested to attend by her line manager, Mr. Friend, who had the authority to make such a request.[137]The Tribunal found that the Claimant had committed no breach of contract or misconduct by travelling and working for at least part of the time in Dubai.[138]We accepted the Claimant’s evidence that she was prevented from accessing her company email account from about 8-9 December 2017 onwards. In order to access the account, the Claimant had to receive a verification code sent to her mobile phone; she was unable to obtain such a code. It is consistent with the Respondent’s misplaced suspicion about the Claimant that steps were taken to stop her from accessing her account on 8 December, which was a date that Mr. Gee called the hotel in Dubai and found that the Claimant was staying there by that time.[139]We found Mr. Gee’s evidence to be disingenuous on this issue of email account access. He was asked whether the account was suspended on 8 December 2017. He answered that, as far as he was aware, it was “available” from 8 December until 15 December 2017, and blamed local connectivity in Dubai. In one sense, the account was “available” since it remained open; but this does not answer the point that the Claimant could not access her account because she was not sent verification codes. Events after the Claimant’s return to the UK[140]On 11 December 2017, the Claimant returned to the UK. The Claimant requested that her absence that day be treated as annual leave. This was refused. This meant that her pay was reduced to Statutory Sick Pay (around £17 per day).[141]The Claimant considered that this was unfair, stating that she had been allowed to do this in other years. The Claimant referred to various alleged comparators, such as one manager who was arrested and kept in custody, during which time his absence was classed as annual leave.[142]As to whether the Claimant was treated less favourably than those other employees, we found that she was treated less favourably than a hypothetical comparator. The Respondent treated each of the cases mentioned by the Claimant of alleged comparators on a case by case basis, such as the manager arrested abroad, but that these were evidential comparators as to how a hypothetical comparator was likely to have been treated.[143]We found, however, that the reason for the refusal to convert the Claimant’s sickness absence to holiday was for reasons unconnected to the disclosures relied upon. This treatment was the result of a combination of factors including the Clamant being absent sick and the allegations made against her arising from the MIFID/MIFIR changes.[144]Also, on 11 December 2017, Mr. Pusco instructed the Compliance Team to run internal SARs by him and the Finance Director, Mr. Scarabino, prior to submission to the NCA. This is apparent from the emails at p.508-509. The reasons for this new system were that: the Claimant was absent sick; the Respondent had a misplaced belief that she was guilty of gross misconduct; Mr. Pusco had decided that Sales department concerns were to carry more weight than Compliance concerns, building upon earlier discussions after Compliance were alleged by Sales management to be blocking withdrawals without cause; and Mr. Pusco had formed the view that Mr. Friend and the Claimant would probably be leaving the Respondent.[145]On 12 December, the Claimant attended her GP, was signed off for 2.5 weeks, and was prescribed anti-depressants.[146]On 15 December, the Claimant was invited to a disciplinary hearing. Her email and IT access were disabled by the Respondent.[147]On 19 December 2017, the Respondent completed a Form C informing the FCA that the Claimant had been suspended: see p136. Recruitment of Mr. Gordon[148]We found that Mr. Gee’s evidence was inconsistent with the evidence produced by Mr. Gordon in the introduction to his grievance investigation report. Mr. Gordon stated that he was employed by the Respondent from 13 December 2017. We find that this was correct, because he was likely to know both the start date and the status of his employment. Moreover, Mr. Gee had stated in evidence that he had been through the report and corrected factual errors; this part of the report was not amended.[149]This inconsistency further undermined the reliability of Mr. Gee’s evidence as a whole. The Tribunal asked itself why Mr. Gee had sought to conceal the true nature of Mr. Gordon’s engagement. Given the above findings of fact, the Tribunal inferred that Mr. Gee had sought to paint Mr. Gordon as an independent grievance officer when in truth Mr. Gordon’s view of the Claimant was coloured by the known belief, and probably the instructions, of his employer, Mr. Pusco, that the Claimant was guilty of gross misconduct. We reminded ourselves of the evidence of Mr. Gee that Mr. Pusco was very “hands on”. From the documents that we saw, we found it unlikely that Mr. Pusco had not raised his beliefs about the Claimant with Mr. Gordon.[150]We found that, by 13 December 2017 at the latest, Mr. Pusco’s view had crystallised to a decision that both the Claimant and Mr. Friend would be dismissed. Our reasons are set out below. The form of secret investigation referred to above had been carried out on both by Mr. Gee. We inferred from all the circumstances that the Respondent had concluded that they were both guilty of gross misconduct.[151]The Claimant learned of the appointment of Mr. Gordon and was concerned, because she had been unable to access her emails from about 8 December, and was anxious that an employee not known to her was now performing the CF11 function, whilst she remained under the duty in law as CF11, requiring her to ensure that the Respondent complied with the regulatory framework.[152]We found that, at this point in time, the fact that Mr. Gordon was covering the CF11 function was a detriment to the Claimant, partly for the above reason. In addition, it was a detriment to the Claimant because the Respondent had not told her that she was not returning; and he had been appointed before she was dismissed.[153]Moreover, the Claimant was subsequently informed on 15 December 2017 by text by Ms. Garilescu, office manager, that the staff had been told that neither the Claimant nor Mr. Friend would be returning to work (evidenced by the text at p560D). Other staff contacted the Claimant shortly after this and expressed their commiserations.[154]Mr. Friend had agreed that recruitment of a Compliance Manager was required, in the absence of the Claimant through sickness. But we found it surprising that a Compliance professional was recruited without the input of the Compliance Director, even if Mr. Gordon had a previous working relationship with a non-executive director.[155]Most significantly, perhaps, on 13 or 14 December, Mr. Scarabino rang Tusker, the company that provided company cars to the Claimant and Mr. Friend. This was followed by an email (p318D), sent at 0918 on 14 December 2017, which asked for information for the early termination of their company cars. Mr. Scarabino asked in bold: “Please keep this information confidential and only communicate it with myself”. This sentence points to the inquiry being a secret one, the inference being that the fact of the inquiry was to be hidden from the Claimant and Mr. Friend.[156]This was followed by a further email correspondence on 15 December. This included from the Tusker employee (at p.318A) at 0947 an email which stated that the exact mileage of Mr. Friend’s TESLA had to be obtained to assess the Early Termination charge. The second, to Tusker, stated: “Can’t believe these two are getting the boot!x”[157]A third email from Mr. Scarabino to Mr Gee, copied to Mr. Pusco and Mr. Clowes (at 1247) included the early termination costs. This included the following, with our emphasis added: “Once we confirm the early termination to Tusker, they will receive a letter to arrange collection from Tusker to their home address.”[158]The evidence of Mr. Clowes was that no decision to dismiss the Claimant and Mr. Friend had been made at the time of these emails. It was contended by him that the Respondent was making an enquiry so it knew the costs involved if the decision to dismiss was made. We did not accept this evidence, finding it so implausible as to cast doubt on the veracity of other parts of his evidence where it conflicted with that of the Claimant.[159]We inferred from several primary facts that a decision had been taken by the Respondent’s Board to dismiss the Claimant and Mr. Friend on or about 12 or 13 December 2017, probably prior to Mr. Gordon’s employment commencing. These findings included the following: 159.1. The above facts concerning the early termination of the leased company car contracts. The Respondent’s explanation for the emails at p318A-C was implausible; there would be no need to know the exact mileage of Mr. Friend’s car if dismissal was only a possibility, and no reason for someone within the Respondent to have stated to Tusker that “these two are getting the boot” unless that decision had already been made. 159.2. The inconsistency within Mr. Gee’s evidence and the evidence from Mr. Gordon in the first paragraph of the grievance report, referred to above at paragraph 148. We found this was designed to paint Mr. Gordon as independent and to suggest that his appointment did not commence on the date that the decision to dismiss was made. 159.3. On the afternoon of 15 December 2017, the Claimant received the message from the PA of Mr. Pusco, Ms. Gavrilescu, to say that the office had been told that neither the Claimant nor Mr. Friend were coming back to the office (see p.560D) and a message from Mr. Power (Compliance analyst) wishing her all the best in the future (p558A). We did not accept Ms. Patel’s evidence that suggested that when speaking to the Compliance Team, she was equivocal about whether they would be returning; we find that she had been told (probably by AG) that they were not returning and that she communicated this to Compliance staff, which is the express point made in the text messages to the Claimant at p.560D and 588A. 159.4. We found that there was no need to employ Mr. Gordon unless Mr. Friend and the Claimant were not going to continue in post; the documents show that the CF11 post can be vacant for up to three months, which would allow for periods of temporary sickness absence. 159.5. Certain findings of Mr. Gordon’s report, particularly those which alleged that the Claimant was guilty of serious misconduct or poor performance, lacked credibility. These pointed to Mr. Gordon not being independent, but an employee who was following a direction or, at least, a steer, by his employer to make findings attacking the Claimant’s credibility and performance. 159.6. The email from Mr. Pusco to FCA on 19 December 2017, stating that there was a significant prospect that the Claimant and Mr. Friend would not be reinstated to their “former roles”, despite the fact that no disciplinary interview or hearing had taken place with the Claimant into her conduct at this point (p.562). 159.7. The fact that Mr. Friend had not been consulted about the appointment of Mr. Gordon. 159.8. The fact that the Respondent had decided that Mr. Friend would no longer be Company Secretary: see email from Mr. Clowes of 14 December 2017, p.524. Claimant’s Grievance 15 December 2017[160]The Claimant lodged a grievance by email at 1044 on 15 December 2017 (p.555- 558). This included disclosures of information that she had made breaches of legal obligations or criminal offences, and that she was subjected to direct sex discrimination, together with other women. In respect of the former, the relevant passage is at p.543: “SAR Regime and POCA 2002 On several occasions now my staff and I were asked to disclose external SAR information including the details of suspicions and their existence to unrelated staff such as Head of Sales. I was called into the meeting room with the CEO, Compliance Director and Head of Sales and questioned on the list of the “delayed withdrawals” majority of which were withdrawals awaiting consent at some point. Furthermore my team has now been informed that they are to send the assessments for potential SARs to the NCA, which would normally be decided upon by me or Compliance director as the DMLRO in my absence, to Director of Finance and the CEO. The requests were to provide the information prior to submission for the CEO and Director of Finance to decide whether the SAR should actually be submitted or not. … Such requests are not only against the regulations and internal policies but are also in breach of Section 333 POCA 2002 which clearly defines the offence of tipping off. …” In respect of sex discrimination, the grievance stated that her opinion as MLRO was not sought or respected because she was a woman (p544): “Discrimination Lastly, numerous times many colleagues and I were witnesses to discrimination towards women. It was mentioned that “women should stay at home and cook” and that women should not be recruited as they fall pregnant. One of the directors even said that “women are meat” whilst drunk at a Christmas party. I am the only female senior manager in the company since the company was formed. Any initiatives from the women in the office are dismissed and the same goes for the initiative Women in Finance. … I am therefore sure that the way I am treated now and disrespect of my decisions as an MLRO and as a manager is based on the fact that I am a woman.”[161]The Tribunal found that the Claimant reasonably believed that her grievance tended to show breach of legal obligations and/or criminal offences. Specifically, she believed that the disclosures tended to show breach of the obligation not to tip off investors, defined in section 333 Proceeds of Crime Act 2012. We found that belief reasonable in view of her expertise in Compliance matters. Further, she believed that her grievance tended to show breach of the legal obligation not to discriminate against employees because of sex. We found that belief to be reasonable given her experiences and facts described in the grievance, the sexual objectification of women admired by Mr. Pusco in the advert referred to above, and the tendency for Mr. Pusco to go over her head and consult Mr. Friend.[162]In respect of whether the Claimant had a reasonable belief that these disclosures were made in the public interest: 162.1. We found that the Claimant had a reasonable belief that the disclosures tending to show a breach of the anti-money laundering provisions and section 333 Proceeds of Crime Act 2012 were made in the public interest, not merely to set out her case in a grievance. In particular: 162.1.1. The Claimant found that, on 13 December 2017, a new employee (Mr. Gordon) had been placed in her seat and given access to all the Compliance records. This concerned the Claimant because she reasonably believed that no one should have access to certain information, including CF11 materials, without authorisation and relevant checks. In addition to this, she could no longer access her emails nor take Compliance decisions, yet she knew that parties not within the Compliance team may be involved in the decisionmaking process that fell within the remit of the Compliance function, such as whether SARs were made. Because of these factors, and because she remained responsible in law to ensure that those responsibilities were discharged as MLRO, the Claimant reasonably believed that the Respondent was likely to breach the legal obligations upon it to report suspected money laundering both in terms of regulatory provision and the criminal law. As a result, the Claimant had a reasonable belief that the disclosure about the breach of the “tipping off” provisions in section 333 POCA 2002 was made in the public interest. 162.1.2. We accepted the Claimant’s evidence to the Tribunal’s questions in which she explained that compliance, whether by the Respondent or another firm obliged to follow FCA rules, was in the interest of the Public; it was to protect clients. She explained that wrongdoing would impact on clients and the sector in general; and although Compliance was her Job Description, it was not in her personal interest. 162.2. We found that the Claimant had a reasonable belief that the disclosures tending to show discrimination against women were made in the public interest, not merely to set out her case in a grievance. In particular: 162.2.1. The Claimant was setting out that women were treated with less respect by the Respondent – being treated as if a second, lesser, class of person; 162.2.2. The Claimant was pointing out that, on a basic analysis, women appeared to have less opportunities for appointment or promotion to senior positions within the Respondent; 162.2.3. The Claimant was setting out that the sexist culture went so far as to affect the Compliance function of the company. This was because her decisions as MLRO were not respected. We inferred that she believed that this had a potentially negative impact on clients and the effectiveness of enforcement of the anti-money laundering provisions.[163]We accepted the evidence of Mr. Friend about the context in which the Claimant was working by November 2017. Delays within Compliance were the product of the tools and systems that he had assisted in developing, coupled with the fact that the Sales arm of the business had pushed for newer, riskier, business which triggered more SARs.[164]The Respondent’s case was that the grievance was made in bad faith, to detract from the fact that the Claimant had been “caught in Dubai” as alleged in the Respondent’s submissions. The Tribunal found as a fact, taking all the evidence into account, that the grievance, and the disclosures within it, had been made in good faith, without ulterior motive.[165]The grievance also included a disclosure of information that she had repeatedly asked for her sick leave to be recorded as annual leave, which she believed to be her legal right. These requests had been refused. The Tribunal found that the Claimant’s belief was mistaken, but the belief was reasonably held because the Respondent had permitted this before, both for the Claimant, when she had been sick, and for both the Claimant and other employees in circumstances where they were absent for reasons other than sickness.[166]The grievance also contained a disclosure that the Respondent had contacted her GP surgery without her consent.[167]We found that the above two disclosures (about recording of sick leave and the Respondent’s contact with the GP surgery) were made in the Claimant’s personal interest, not the public interest, because the first was related purely to the belief that she had a personal right to convert sick pay to holiday pay; and the second complained that the Respondent’s request had aggravated her stress and anxiety.[168]As explained above, on 15 December and subsequent days, the Claimant received messages from colleagues at the Respondent which indicated that it was common knowledge that she would not be returning to work there.[169]The Respondent alleged that the grievance had only been filed after the Respondent had invited the Claimant to a disciplinary hearing. We rejected that argument. We found that the grievance and the invitation basically crossed over; neither prompted the other. Mr. Gee said in evidence that he was drafting the letters between 13 and 15 December 2017. We found the letters were a retrospective attempt from the Respondent to create evidence which would suggest use of a disciplinary procedure, when, in reality, the decision to dismiss had already been made. In any event, the Claimant sent her grievance independently of this charge letter.[170]Mr. Gee forwarded the grievance to Mr. Pusco and Mr. Clowes. The email, headed “Strictly Confidential”, states: “Gentlemen, Please see the email below and let me know who else you wish it to be shared with/what action you wish to take from this point…”[171]This is an unusual response to a whistleblowing grievance, from a HR professional, because the grievance procedure or the whistleblowing procedure of the employer prescribes what action is required after such a grievance is made; whistleblowing complaints would (in the Tribunal’s experience) normally be expected to be confidential, and, in any event, what action should be taken is not at the whim of the CEO and Chief Finance Officer. We found that this response from Mr. Gee was evidence which tended to confirm our inference that there was a plan concerning the fate of the Claimant and that the decision to dismiss had already been made.[172]Despite the Claimant’s sickness absence, the Respondent did refuse to delay dealing with the Claimant’s grievance and the disciplinary process. We found the reason for this, consistent with other evidence, was that the Respondent had already made up its mind that the Claimant would be dismissed. Submission of Form C to the FCA by the Respondent[173]A Form C (p.136) was signed on 20 December 2017 and sent to the FCA. This contained a statement that the Claimant had been suspended; and contained a declaration that knowingly or recklessly giving the FCA information which was false in a material particular may be a criminal offence (p.139). In fact, from the evidence of the Claimant and Mr. Gee, the statement in the Form C was incorrect. The Claimant was not suspended when this Form was submitted; indeed, the Claimant was sent a letter dated 15 December 2017 stating that she would be suspended when she returned from sickness absence (see p.527). Moreover, this letter did not state that she was suspended from her CF11 role and this was never communicated to her in any form. For example, the email of 9 January 2018 from Mr. Gordon to the Claimant (p.656) states that he is “temporary cover for [her] CF11” role, not that she is suspended from her role. We found that she was never suspended from her CF11 role; the Respondent did not do so, and had no need to do so, because it had already decided to dismiss her when Mr. Gordon was appointed. We found the submission that she was suspended from this role was not supported by the evidence. The email of 19 December 2017 from Mr. Pusco to the CFA (p.562) was designed to inform them that Mr. Gordon was to carry out the CF11 MLRO functions (and CF10 functions of Mr. Friend, who was suspended) even though Mr. Gordon did not have Approved Person status.[174]The Tribunal found that Form C did contain information which was, as a matter of fact, false. We found the completion of this form was an act aimed at damaging the Claimant’s career prospects, by an attempt to get the FCA to declare that she was not a fit and proper person to hold a Compliance officer/MLRO role. Thus, the completion of the Form C was very much to the Claimant’s detriment; and it came after the Claimant’s ability to communicate by using her email account with the Respondent was cut off, after Mr. Gordon was placed in her seat carrying out her functions (without reference to her), and after she had learned that staff were told that she was not returning to work.[175]We inferred from the primary facts that the reason that the Form C was completed in this way was because of the contents of the Claimant’s grievance. The Form C was completed as it was because of the protected disclosures and the complaint of sex discrimination within the grievance. In particular, the Respondent well knew that the Claimant was not suspended when the Form C was submitted to the FCA; there could be no question of any mistake by the Respondent and none was suggested in evidence. Moreover, the Form C was signed by the Respondent only after the grievance was received, when it could have been signed and sent at some point between 13 and 15 December when the Respondent had already decided to charge the Claimant with gross misconduct.[176]The detriment alleged at issue 7(12) is really further evidence relevant in this set of events, rather than a free-standing detriment on its own. The Claimant contends that the Respondent was paying her SSP, yet alleging that she was suspended (in which case she would have received full pay). This is a further illustration that the Form C was completed in a misleading way. Failing to provide documents requested as part of the disciplinary process[177]We accepted the Claimant’s evidence as to the documents requested and not provided. We noted that Mr. Gee sent some, but not all, of the documents requested. We found that the delays in disclosing the documents to the Claimant were not connected to the disclosures made by her. We found that the reason that the Respondent delayed was because it did not want the Claimant to have evidence that could be used against it either in the disciplinary process or in Employment Tribunal proceedings. Alleged breaching of the Claimant’s privacy and data protection rights[178]Mr. Gee accepted in evidence that, at various times, he had contacted the Claimant’s GP surgery. These contacts were because he was carrying out surreptitious investigation into the Claimant’s conduct, as part of the Respondent’s theory that she was not in fact ill but was enjoying a trip to Dubai, as the partner of Mr. Friend, at the company’s expense. The information obtained was to be used in a case against the Claimant.[179]On about 6 December, Mr. Gee rang the surgery and posed as a potential new patient. It can be seen from the email recording this sent to Mr. Pusco (p453) that suspicion had fallen on the medical certificate provided by the Claimant, and whether it was genuine. What is noticeable from this email trail is that the Respondent were building a case against the Claimant at this time, evidenced by the response from Mr. Pusco (p.453).[180]At p.510, there is correspondence between Mr. Gee and the secretary to the Claimant’s GP. The email from Mr. Gee contains a false statement; he claimed to want to know whether the medical certificate produced by the Claimant is genuine, so that the Claimant was not “financially disadvantaged”, but we find that he was carrying out a surreptitious investigation for a different purpose. To this extent, we find that this enquiry of the GP surgery was a detriment; it would have been unsettling for the Claimant, with her stress-related mental impairment, when she subsequently found out about this enquiry when her GP surgery informed her of it, which was on about 11 December 2017. There were no reasonable grounds, with a factual basis, for Mr. Gee to believe that the private medical certificate was fabricated.[181]We did not find that these actions of the Respondent were the result of disclosures made by the Claimant. Mr. Gee’s actions, and the response of Alex Pusco at p.453 (“Let’s add it to the case”) demonstrate how the Respondent had lost its ability to be objective by this stage because of its belief that the Claimant had committed gross misconduct by travelling to Dubai.[182]We have considered the allegation of the misuse of highly sensitive personal data and confidential information, including accessing her personal data on the Respondent’s computer.[183]We found that the Respondent was entitled to retain any data (personal or otherwise) held on its computers or drives during the Claimant’s employment: see the Claimant’s contract at paragraph 4.4 (p.101). Moreover, we heard no evidence that the Claimant’s personal files were marked as “confidential” or “private”. We accepted the Claimant’s evidence as to the nature of the personal data held on her work PC, including highly sensitive personal data.[184]The contract of employment came to an end on 2 February 2018, when the Claimant resigned. The Respondent had no contractual right to retain the Claimant’s personal data after that point. We note that none of the Claimant’s sensitive and highly personal data found on her PC has been relevant in these proceedings, and we understand that none is in the Bundle, nor has any been used in other proceedings (the threatened High Court proceedings have not materialised). Claimant’s disclosure to FCA, 19 January 2018[185]On 19 January 2018, the Claimant made a disclosure by email to the FCA (p840- 842). This attached her grievance of 15 December 2017 and alleged victimisation by her employer.[186]In this disclosure to the FCA, the Claimant was going beyond merely explaining her position, but included the alleged regulatory breaches referred to in her grievance. Part of the complaint was in essence that she had been victimised for the disclosures made: see, especially, p.841 (top paragraph).[187]We have no doubt that the Claimant reasonably believed that the information and allegations contained within her protected disclosures made within her grievance, and to the FCA, were true. We found, however, that the Respondent did not know at the material times of the Claimant’s disclosure to the FCA; in the Tribunal’s experience, we would have expected the FCA to keep a whistleblowing complaint, and the identity of the whistleblower, confidential. Resignation[188]We found that a decision to dismiss the Claimant had been made before her resignation and before any disciplinary proceedings were instigated. In particular: 188.1. On 13 December 2017, the Claimant learned that Mr. Gordon was placed in her seat, and given access to all Compliance records, despite the fact that the Claimant was still the CF11 Officer. This concerned her, because she was responsible for this function, yet the person in her seat was performing it without authorisation from the FCA and making decisions for which she could be liable as MLRO. Moreover, the Claimant had no access to her work email account to access any information or requests sent to her. 188.2. The Claimant learned from colleagues whilst off sick (on 15 December 2017) that she would not be returning to work. 188.3. Ms. Patel’s evidence was that, on about 15 December 2017, she was told that the Claimant was not returning. 188.4. The email of 31 January 2018, from Mr. Gee to Mr. Pusco (p.1006) demonstrates that the recruitment exercise was in progress, and Mr. Gee’s concern was that recruiting to the Claimant’s post would demonstrate that the decision to dismiss had been made already.[189]On 20 December 2017, the Claimant received the letter at p874-875. This alleged that the Claimant had committed gross misconduct. It informed the Claimant that she would be suspended when she returned from sickness, despite the fact that the Respondent lacked reasonable grounds for the gross misconduct alleged. In response, the Claimant denied the allegation and requested evidence for the alleged misconduct.[190]On 27 December 2017, at Mr. Friend’s disciplinary hearing, he stated that he had known that the Claimant was off sick when he asked her to go on the Dubai visit, but he had done so, because, as with earlier visits, he needed her help to prepare, and a specialist had said that she could fly. His evidence was that he acted to protect the Respondent.[191]On about 9 January 2018, the Claimant realised that her job was advertised with at least five recruitment agencies, from end December 2017. She asked the Respondent why her job was being advertised.[192]Further, in the Claimant’s absence whilst sick, the Respondent searched through her documents in and on her desk, and on her computer. Thereafter, on 29 January 2018, the Respondent’s solicitor sent further accusations that the Claimant had provided false information when completing the Form A and her annual attestations for the company (pp897-991). The letter alleged that “our client is concerned that [the Claimant] may have committed a criminal offence under section 398 of the Financial Services and Markets Act 2000”. It is significant that the sole reason given for relying on these documents was because of the alleged false information in Form A. On 6 February 2018, Mr. Gordon wrote to the FCA and stated that he had had to access the Claimant’s work PC for the purposes of his work, and alleged that he found documents on it showing that her Form A was completed in a false or misleading way (p1106-107). Again, he gave no other reason for the use or retention of the Claimant’s personal documents.[193]The Tribunal concluded that the false allegation made on 29 January 2018 that the Claimant had provided false information when completing the FCA Form A caused the Claimant to resign on 2 February 2018. This false allegation was seriously detrimental treatment capable of amounting to a last straw in this case. Moreover, we found that this treatment was capable of amounting to a breach of the implied term of trust and confidence in itself.[194]The Claimant’s decision to resign was caused by this treatment. There is no evidence that she had secured a new role when she made the decision to resign; the Respondent invites us to draw this inference, but, on the evidence of the Claimant and the evident hurt that she felt from this false allegation, coming after the treatment that preceded it (including learning that colleagues had been told that she would not be returning) we concluded that the new role had not been secured at the date of, and could not be a cause of, the resignation.[195]Moreover, the Tribunal inferred from the Claimant’s subsequent appointment in her new role, and the fact that she now holds CF10 and CF11 functions, demonstrated that the FCA concluded that she had done nothing wrong when she completed her Form A after appointment by the Respondent and that she was a fit and proper person to hold those roles. Post-termination disclosures[196]By a letter from her solicitors, dated 2 February 2018, the Claimant stated that the Respondent had retained her highly personal data in breach of the Data Protection Act 1998: see for example p.1012: “Furthermore the Company and/or its employee and/or its agents has/have, inter alia, committed very serious breaches of the Data Protection Act 1998, Article 8 of the Human Rights Act 1998, the terms of our Client’s (implied and express) contract of employment and the ACAS Code of Conduct.”[197]The letter contains disclosures of information in respect of the alleged data protection breaches: see the first full paragraph on p.1014.[198]This letter contained disclosures of information which in the Claimant’s reasonable belief tended to show that the Respondent had breached her rights to have her data protected under Data Protection Act 1998 and her right to a private life under Article 8 ECHR.[199]However, seen in context, the letter of 2 February 2018 is responding to correspondence from the Respondent’s solicitors, in which allegations against the Claimant are made. This correspondence is part of the anticipated litigation between the parties. The information disclosed is not made in the public interest, but in the private interest of the Claimant, setting out her position ahead of litigation.[200]The Claimant made a further disclosure of information in writing to the Information Commissioner’s Office on 6 February 2018 (p.1104 and p1561), in which she complained of breaches of her data protection rights which she alleged amounted to victimisation for making protected disclosures.[201]We found that the Claimant had a reasonable belief that the Respondent’s obligation under DPA 1998 not to retain sensitive personal data, save in circumstances specified in the statute, had been breached. This formed part of an exchange of correspondence between the Claimant and the ICO.[202]We found that this disclosure was made because the Claimant wanted her highly personal data returned or destroyed, in order to protect her privacy (a point made by the Claimant at p.1309) and in order to stop her feeling “absolutely violated” (p1309). We found that the Claimant did not have a reasonable belief at the time that this disclosure was made in the public interest; she was making the disclosure in her personal interest.[203]On 26 February 2018, the Claimant made a Subject Access Request (p.1452- 1453).[204]The Respondent did not send a substantive response to the Claimant’s personal email address, but to her former work email address. This was found by the ICO to be a breach of the data protection principle that personal data held must be accurate and up to date: see p.1737. The Tribunal found that sending this information to the wrong email address was a deliberate tactic by the Respondent because she had made protected disclosures in her grievance, because it was patently obvious the Claimant could not access this account (Mr. Gee having made sure that she could not access it from early December 2017).[205]On 8 April 2018, the Claimant made a further disclosure of information in writing to the ICO, stating: “The Firm also failed to meet the deadline of the SAR. To date, I have no communication on the matter whatsoever.”[206]We found that when making this disclosure, the Claimant had a reasonable belief that the Respondent had not complied with its obligations under the Data Protection Act 1998 to provide copies of data held by it. Moreover, the Claimant believed that the information provided was true.[207]The Tribunal concluded that the Claimant reasonably believed that this disclosure was made in the public interest, in that it pointed out alleged breaches of the law (part of which complaint was upheld). Also, it was made in an attempt to force the Respondent to comply with its Data Protection Act obligations in respect of her personal data. Moreover, by this stage: 207.1. the Claimant had already put the Respondent on notice of where to get advice about data retention (that is, from the ICO – see her Subject Access Request of 26 February 2018, p.1453); 207.2. the ICO had given guidance to the Respondent about its obligations in respect of data retention (see 26 March 2018 p.1565-1566); 207.3. the Claimant was complaining that the Respondent was acting contrary to that ICO advice.[208]On 13 April 2018, the Claimant disclosed the following to the ICO: “Unfortunately, the only conclusion drawn from this is the same as what I attempted to deliver to the attention of the ICO in all my correspondence. The Firm is acting with no integrity and, as far as I am concerned, is committing serious offences. The named individuals knowingly and deliberately send the emails to the wrong email address and are in breach of the DPA 1998 again.”[209]The content of this email is one of allegation; there is no disclosure of information, such as who sent the emails, when, nor why they did so deliberately.[210]Within the list of issues, the Claimant also sought to rely upon a disclosure in writing to the Respondent’s solicitors, made on 8 April 2018. This disclosure was not part of the Claim. In the absence of any application to amend, we treated this disclosure as background evidence only. The substance of this disclosure is set out in the list of issues. It is apparent that it is following up the SAR and alleges breach of the SAR by the Respondent; but this is not made in the public interest, but in the Claimant’s personal interest of obtaining documents for use in anticipated litigation.[211]On 6 March 2018, the Respondent provided a copy of the grievance report by Mr. Gordon. We have explained above why we rejected the relevant parts of that report above as being unreliable, or not credible. Generally, having seen the Claimant in crossexamination and viewed all the documents, we preferred the Claimant’s oral evidence of fact to the contents of the report. Continued holding of personal data after termination of employment[212]We recognise that a data processor may lawfully retain or supply data to a third party where it is necessary to obtain legal advice. The Respondent gave all the Claimant’s personal data to its solicitors. The Tribunal found that there was never any factual basis that made it necessary to obtain legal advice about the highly personal matters within the data collected from the Claimant’s computer. For example, the data about her former marriage and divorce, her mother, or previous police involvement with her former husband, would not be necessary to obtain legal advice. We noted that on 19 January 2019, the ICO overturned its previous assessment, and concluded that the Respondent had not complied with data protection legislation, by retaining the Claimant personal data (see p.2511). The ICO required the Respondent to delete all information that was “not being relied upon in order to defend legal claims”. This requirement was repeated on 30 January 2019. However, the Respondent still to this day retains all the Claimant’s personal data on a memory stick, held by its data protection officer. The blanket retention of all the Claimant’s personal data led the Tribunal to infer that the Respondent had made this wholesale retention for another reason.[213]Whether or not the Respondent had a potential legal right to retain any personal data of the Claimant after the termination of her employment, we inferred that the Respondent retained the Claimant’s highly personal data because she had made the protected disclosures, which included the complaints of direct sex discrimination, within her grievance, not because of any potential legal right. Because of those disclosures, and in part because of that complaint of sex discrimination, the Respondent sought to use the retention of such sensitive personal data as a tool against the Claimant, as leverage to try to push her into not pursuing any form of claim against it – whether brought by herself or not. It was not retained for the reasons suggested by the Respondent.[214]The Tribunal could not understand why, in any event, the Respondent decided to keep the type of highly personal data referred to for any legal advice purpose (nor why the Respondent had subsequently failed to obey the ICO’s ruling to delete such data) unless its intention was to use it as leverage against the Claimant in the future. We found that this retention would not have happened unless the protected disclosures, and the complaint of direct sex discrimination, in the grievance were made.[215]In summary, we found that the Respondent refused to delete the Claimant’s sensitive personal data, including data about her private and family life, after her employment ended, and instead to use it as the tool referred to, because the Claimant had made protected disclosures, and complained of sex discrimination, within her grievance. Threats of legal action against the Claimant[216]The Respondent instructed solicitors. By a solicitor’s letter of 6 March 2018 (p1470), the Respondent accused the Claimant of “spending a significant amount of time running her eBay account from her work computer during working hours” and had stored several music files on the system, alleging that 70 were “downloaded from three illegal download sites”.[217]By a further solicitor’s letter dated 13 April 2018, the Respondent threatened to bring a claim in the High Court against the Claimant, in which damages and an injunction would be claimed. The Tribunal found that several allegations within that letter were factually incorrect, and would be known by the Respondent to be factually incorrect. (We emphasise that we attach no blame to the solicitor whom we infer was acting on instructions). These included the following: 217.1. The allegation that the Claimant had no permission to go to Dubai on the trip referred to. We have found that she was invited to go. 217.2. Form A did not contain misleading information, for the reasons that we have set out above. 217.3. The time taken to implement MIFID II and EMIR was not the responsibility nor the fault of the Claimant or the Compliance department. 217.4. The Tribunal found that the Claimant and Mr. Friend did not “manipulate their travel plans” to be together. 217.5. The Claimant ran her ebay account from her work computer and spent over 15 weeks looking at internet sites.[218]In contrast to these allegations, we found that: the Claimant and Mr. Friend were required to go on Compliance visits together for the benefit of the business, such as the one to Dubai in November/December 2017; there was no evidence before us to support the allegation that they had travelled together due to their relationship, rather than the needs of the business; and the Claimant was requested to attend by her manager. In respect of the alleged computer misuse, we accepted the Claimant’s evidence; our reasons are set out above. Further, a Subject Access Request to eBay was responded to (at p2008), demonstrating no sales recorded on this account. We found that the Claimant was not running an eBay account. Accessing eBay pages was not in breach of the IT Acceptable Use Policy at pp 2084C-E; if there was any such breach, we find that it was relatively trivial, and we heard no evidence to suggest that this Policy was enforced rigorously or at all. We found that the allegation about 15 weeks was a construct; the Respondent had carried out no real investigation nor obtained any report to support its allegation.[219]The Claimant commenced employment with TradeTech Alpha Limited on 26 February 2018. This was not a competitor firm, for the reasons explained by her in evidence; it had only a handful of retail clients and specialised in business to business transactions. We found it likely that the Respondent knew that, and that it would have applied for an injunction immediately if it honestly held the belief that it was a competitor. Moreover, Ms. Patel’s contractual terms were the same; when she resigned to move to a competitor, no threat was made to her. We found that there was another reason behind the threat to obtain an injunction against the Claimant.[220]The Tribunal found that this letter, and the threat of an injunction application within it, was created because the Claimant had made protected disclosures in her grievance, because of the complaint of direct sex discrimination within the grievance, and because, by this stage, she had engaged in the ACAS Early Conciliation process (certificate dated 23 February 2018), which suggested to the Respondent that a legal claim was likely to be made. By sending this letter of 13 April 2018, the Respondent hoped to use it as leverage against the Claimant, to stop her pursuing any legal proceedings.[221]Following the Claimant’s recruitment by TradeTech Alpha, she needed to submit a further Form A to the FCA, in respect of both CF10 AND CF11 functions. On 29 May 2018, the FCA determined that the Claimant was a fit and proper person to hold these functions. We inferred that, by that date, the FCA had considered all the allegations from Respondent and the information from the Claimant. The inference from its favourable determination is that the FCA rejected the Respondent’s arguments on this issue.[222]The Respondent has been told on three occasions that the Claimant’s sensitive personal data should be deleted. The Respondent continues to hold onto it; it was admitted that it is still being held by its data protection officer. We accepted Mr. Gee’s evidence that it was removed from the Respondent’s system on 6 September 2018, and that it is now on a memory stick. Submissions[223]The Tribunal received detailed written submissions from both parties. Counsel and the Claimant added to their written submissions orally. It would not do justice to either set of submissions to attempt to summarise them here, not least because of their length. It suffices to say that the Tribunal took into account each and every submission, even if we do not address every submission below; to address every submission in a case of this nature would be disproportionate and not assist in providing a clear decision on all the issues. The Law Employment Rights Act 1996 Part IVA Protected disclosures: statutory definition:
The Law
[224]We directed ourselves to the relevant statutory provisions of the ERA 1996, and considered the statutory wording. We were conscious of the importance of not adding any form of gloss to the statutory wording. We also considered guidance from the appellate courts in a number of cases.[225]For a qualifying disclosure to be protected, it must be made in accordance with any of Sections 43C – 43H: Section.43A ERA. These subsections set out various categories of person to whom a disclosure may validly be made, and the conditions attached to disclosures made to each of them.[226]Section 43B(1) includes, where relevant: “In this Part, a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed;(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;(c) …”[227]We recognised that “disclosure” for the purpose of Section 43B means more than mere communication. It requires a revelation or disclosure of facts: Cavendish Munro Risks Management Ltd v Geduld [2010] ICR 325 at paragraph 27[228]Section 43B(1) does recognise a distinction between “information” and “an allegation”: see Geduld at paragraph 20. But we were cautious about approaching Geduld as if there was a clear dichotomy between information and allegations. As explained by Mr. Justice Langstaff in Kilraine v Wandsworth LBC [2016] IRLR 422 at paragraph 30: “The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point.”[229]Whether the words used amount to a disclosure of information will depend on the context and the circumstances in which they are used: International Petroleum v Osipov UKEAT 0229/16.[230]The “wrongdoing” provisions of s.43B(1) were subject to some examination in Babula v Waltham Forest College [2007] EWCA Civ. 174, [2007] ICR 1026. As the EAT explained in Soh v Imperial College UKEAT 0350/14, the following propositions are wellestablished: 230.1. The Tribunal should follow the words of the statute. No gloss upon them is required. The key question is whether the disclosure of information, in the reasonable belief of the worker making the disclosure, tends to show a state of affairs identified in section 43B: in this case, that a person had failed to comply with a legal obligation to which he was subject. 230.2. Breaking this down further, the first question for the Tribunal to consider is whether the worker actually believed that the information he was disclosing tended to show the state of affairs in question. The second question for the Tribunal to consider is whether, objectively, that belief was reasonable (see Babula at paragraph 81). The third question for the Tribunal is whether the disclosure was made in good faith. 230.3. If the first two tests are satisfied, it does not matter whether the worker was right in his belief. A mistaken belief can still be a reasonable belief. 230.4. Whether the worker himself believes that the state of affairs existed may be an important tool for the Tribunal in deciding whether he had a reasonable belief that the disclosure tended to show a relevant failure. Whether and to what extent this is the case will depend on the circumstances.[231]More recently, in Chesterton Global v Nurmohamed 2017 IRLR 837, the Court of Appeal held that (with our emphasis added): 231.1. In applying s.43B, the tribunal had to ask whether the worker believed, at the time of making it, that the disclosure was in the public interest and whether, if so, that belief was reasonable. The tribunal had to recognise that there could be more than one reasonable view as to whether a particular disclosure was in the public interest. The necessary belief was simply that the disclosure was in the public interest; the particular reasons why the worker believed that to be so were not of the essence. While the worker had to have a genuine belief that the disclosure was in the public interest, that did not have to be the predominant motive in making it. There was not much value in providing a general gloss on the phrase "in the public interest": Parliament had chosen not to define it and the intention must have been to leave it to tribunals to apply it as a matter of educated impression (see paras 26-31). 231.2. An approach to public interest which depended purely on whether more than one person's interest was served by the disclosure would be mechanistic and require the making of artificial distinctions. Whether disclosure was in the public interest depended on the character of the interest served by it rather than simply on the number of people sharing that interest. However, it could not be said that mere multiplicity of persons whose interests were served by disclosure could never convert a personal interest into a public interest. The statutory criterion of "in the public interest" did not lend itself to absolute rules, still less when the decisive question was what could reasonably be believed to be in the public interest (paras 35-36). The correct approach was that in a whistleblower case where the disclosure related to a breach of the worker's own contract of employment, or some other matter under s.43B(1) where the interest was personal in character, there might nevertheless be features of the case that made it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. The question was to be answered by the tribunal considering all the circumstances of the particular case, but it could be useful to consider: the numbers whose interests the disclosure served; the nature of the interests affected and the extent to which they were affected by the wrongdoing disclosed; the nature of the wrongdoing disclosed; and the identity of the alleged wrongdoer (paras 34, 37).[232]The Respondent’s submissions cite Korashi v Abertawe Bro Morgannwg University [2012] IRLR 4. It is helpful to consider the relevant paragraphs of the judgment, 61-62 (with our emphasis added): “61. There seems to be no dispute in this case that the material for the purposes of s43B(1)(a)-(e) would as a matter of content satisfy the section. In our view it is a fairly low threshold. The words “tend to show” and the absence of a requirement as to naming the person against whom a matter is alleged put it in a more general context. What is required is a belief. Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold. No doubt because of that Parliament inserted a filter which is the word “reasonable”. 62. This filter appears in many areas of the law. It requires consideration of the personal circumstances facing the relevant person at the time. Bringing it into our own case, it requires consideration of what a staff grade O&G doctor knows and ought to know about the circumstances of the matters disclosed. To take a simple example: a healthy young man who is taken into hospital for an orthopaedic athletic injury should not die on the operating table. A whistleblower who says that that tends to show a breach of duty is required to demonstrate that such belief is reasonable. On the other hand, a surgeon who knows the risk of such procedure and possibly the results of meta-analysis of such procedure is in a good position to evaluate whether there has been such a breach. While it might be reasonable for our lay observer to believe that such death from a simple procedure was the product of a breach of duty, an experienced surgeon might take an entirely different view of what was reasonable given what further information he or she knows about what happened at the table. So in our judgment what is reasonable in s43B involves of course an objective standard — that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistleblowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their “reasonable” belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.” Detriment complaints under section 47B ERA and the test of causation[233]Section 47B(1) ERA provides: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."[234]Under section 48(2) ERA 1996 where a claim under section 47B is made, "it is for the employer to show the ground on which the act or deliberate failure to act was done".[235]It was common ground that section 47B will be infringed if the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower: see Fecitt v NHS Manchester [2012] IRLR 64. The Court noted this mirrors the approach adopted in unlawful discrimination cases and reinforces the public interest in ensuring that unlawful discriminatory considerations are not tolerated and should play no part whatsoever in an employer's treatment of employees and workers.[236]In a detriment claim under section 47B, the test of detriment is that set out in Shamoon, explained below.[237]Section 47B(2) ERA precludes a claim of detriment where it amounts to dismissal.[238]The protection conferred by section 47B(2) ERA extends to former employees. The context and purpose of the amendment of the ERA by the Public Interest Disclosure Act 1998 was the protection of workers who made certain disclosures of information in the public interest and the provision of an action if they suffered detriment as a result; it would be palpably absurd and capricious for Parliament to have afforded protection only in respect of acts done by the employer in retaliation while the contract of employment subsisted and not to protect those whose employment had terminated: see Woodward v Abbey National (no.1) [2006] ICR 1436.[239]There was no limitation in the statutory wording to protected disclosures made during the relevant employment. Worker and employer were defined in section 230 ERA 1996 as those who were, or had ceased to be, in a contractual relationship of service. Since the detriment had to occur and be causatively linked to the protected disclosure, it followed that it had to come later in time, and, since the detriment could arise posttermination (see Woodward, above), there was no warrant for limiting the disclosure to the duration of the employment. It followed that, as a matter of pure construction of the statute, post-termination disclosures might be relied on if they led to detrimental treatment. This is in line with the legislative purpose of protection for whistleblowers and entirely consistent with Woodward. See Onyango v Berkeley UKEAT 0407/12. Automatic unfair dismissal: section 103A ERA[240]On a claim of unfair dismissal for making a protected disclosure under section 103A ERA, a tribunal must identify whether the making of the disclosure had been the reason, or principal reason, for the dismissal: Kuzel v Roche Products ltd [2008] IRLR 530. What was the set of facts or beliefs operating on the mind of the employer causing it to dismiss is a question of direct evidence or inference from the primary facts.[241]In contrast, whether the disclosure in question was a protected disclosure is a matter for objective determination by the tribunal, to which the beliefs of the decisionmaker were irrelevant: Croydon Health Services NHS Trust v Beatt [2017] ICR 1240 (post, paras 74–76, 80, 93, 115, 116). Jurisdictional points[242]Section 48 (3) ERA provides that an employment tribunal shall not consider a complaint under section 48 unless it is presented"(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."[243]Section 48(4) provides that – “For the purposes of subsection (3) –(a) where an act extends over a period, the “date of the act” means the last day of that period, and(b) a deliberate failure to act shall be treated a done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.”[244]In Arthur v London Eastern Railway [2007] ICR 193, the following guidance was provided on the application of section 48(3) ERA: 244.1. The aim of s.48(3) was to exclude from the jurisdiction of tribunals any complaints that were not made timeously. In general, a complaint to a tribunal had to be made within three months of the act complained of. However, Parliament considered it necessary to make exceptions to the general rule where an act or failure in the three-month period was not an isolated incident. An act extending over a period may be treated as a single continuing act and the particular act occurring in the three-month period may be treated as the last day on which the continuing act occurred. The provisions in s.48(3) regarding the complaint of an act that was part of a series of similar acts was also aimed at allowing employees to complain about acts of detriment that were outside the three-month period. However, there had to be a necessary connection between the acts in the three-month period and the acts outside it. The acts had to be part of a series and had to be similar to one another. The last act or failure within the three months might be treated as part of a series of similar acts or failures occurring outside the period and, if it was, a complaint about the whole series of similar acts or failures would be treated as being in time. 244.2. It was not a particularly enlightening exercise to ask what made acts part of a series, or what made one act similar to another. It was preferable to find the facts before attempting to apply the law. In order to determine whether the acts were part of a series, some evidence was needed to determine what link, if any, there was between the acts in the three-month period and the acts outside the three-month period. Even if it was decided that there was no continuing act or series of similar acts, that would not prevent the complainant from relying evidentially on the pre-limitation period acts to prove the acts or failures that established liability. It would in many cases be better to hear all the evidence and then decide the case in the round, including limitation questions. 244.3. It is possible that a series of apparently unconnected acts could be shown to be part of a series or to be similar in a relevant way by reason of them all being done to the claimant on the ground that he had made a protected disclosure (post, paras 39, 41).[245]The burden is on the Claimant to show that it was not reasonably practicable to present the complaints in time. Reasonably practicable does not mean “reasonable” nor “physically possible”. It means “reasonably feasible”: Palmer v Southend on Sea BC [1984] ICR 372.[246]In Palmer, May LJ explained that the test was an issue of fact for the Tribunal and gave examples of facts that may be relevant in certain cases: see p.385B-F. This concludes: “Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account.” The Equality Act 2010 Direct Discrimination[247]Section 13 EA 2010 provides: “A person(a) (A) treats another person(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[248]In Shamoon, at 9-11, Lord Nicholls gave guidance as to how an employment tribunal may approach a complaint of direct discrimination and explained that it was sometimes unnecessary to identify a comparator: “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.” Less favourable treatment and “detriment”[249]The proper test as to whether a detriment has been suffered is set out in Shamoon at paragraphs 34-35. It was not necessary for the worker to show that there was some physical or economic consequence flowing from the matters complained of. In short: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”.” Causation[250]If the tribunal is satisfied that the protected characteristic is one of the effective reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason: see the observations of Lord Nicholls in Nagarajan (p 576) as explained by Peter Gibson LJ in Igen v Wong, paragraph 37. Discrimination by Victimisation[251]Section 27 provides, where relevant: “A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act;(c) giving evidence or information in connection with proceedings under this Act;(d) doing any other thing for the purposes of or in connection with this Act;(e) making an allegation (whether or not express) that A or another person has contravened this Act.”[252]The detriment must be “because of” the protected act, but this is not a “but for” test: see Bailey v Chief Constable of Greater Manchester [2017] EWCA Civ. 425. Although motivation is not required, the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment must be shown to exist: see R (E) v Governing Body of MR. FRIENDS [2009] 1 AER 319, approving Nagarajan v London Regional Transport [1999] IRLR 572 on this point. Burden of proof in discrimination cases[253]We reminded ourselves of the reversal of the burden of proof provisions within section 136(2) EA 2010, as explained in Igen v Wong [2005] EWCA Civ. 142 and Madarassy v Nomura [2007] ICR 867.[254]The burden of proof is not shifted simply by showing that the claimant has suffered a difference in treatment or detrimental treatment and that she has a protected characteristic or has done a protected act: Madarassy; Bailey v Chief Constable of Greater Manchester [2017] EWCA Civ. 425. In Madarassy, Mummery LJ explained (referring to the predecessor statutory provisions): “57 “Could … conclude” in section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment. 58 The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.”[255]It is important, however, not to make too much of the role of the burden of proof provisions at section 136. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they do not apply where the tribunal is in a position to make positive findings on the evidence one way or the other: Hewage v Grampian Health Board [2013] UKSC 37. Constructive Dismissal[256]Section 95(1)(c) ERA provides that there is a dismissal when the employee terminates the contract with or without notice, in circumstances such that she is entitled to terminate it without notice by reason of the employer’s conduct.[257]The burden was on the employee to prove the following:(i) That there was a fundamental breach of contract on the part of the employer;(ii) That the employer’s breach caused the employee to resign;(iii) The employee did not affirm the contract and lose the right to resign and claim constructive dismissal.[258]The propositions of law which can be derived from the authorities concerning constructive unfair dismissal are as follows: 258.1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: see Western Excavation Limited v Sharp. 258.2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see Malik v Bank of Credit and Commerce International [1998] AC20 34h-35d and 45c-46e. 258.3. Accordingly, a breach of the duty of trust and confidence has two limbs:258.3.1 the employer must have conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee; and258.3.2 that there be no reasonable or proper cause for the conduct. 258.4 Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, Browne-Wilkinson J in Woods v Wm Car services (Peterborough) Limited [1981] ICR 666 at 672a; Morrow v Safeway Stores [2002] IRLR 9. 258.5 The test of whether there has been a breach of the implied term of trust and confidence is objective as Lord Nicholls said in Malik at page 35c. The conduct relied as constituting the breach must impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. 258.6 A breach occurs when the proscribed conduct takes place: see Malik. 258.7 Reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach; but it is not a legal requirement: see Bournemouth University v Buckland [2010] ICR 908 at para 28. 258.8 In terms of causation, the Claimant must show that she resigned in response to this breach, not for some other reason. But the breach need only be an effective cause, not the sole or primary cause, of the resignation: Wright v North Ayrshire Council [2014] IRLR 4. 258.9 The facts have a considerable part to play in assessing compensation where there is more than one reason for dismissal. The Tribunal may need to evaluate whether a Claimant would have left employment in any event: see Wright at paragraph 32.[259]In Kaur v Leeds Teaching Hospital NHS Trust [2018] IRLR, the Court of Appeal approved the guidance given in Waltham Forest LBC v Omilaju (at paragraph 15-16). Reading those authorities, the following comprehensive guidance is given on the “last straw” doctrine:259.1 The repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence: Lewis v Motorworld Garages Ltd [1986] ICR 157, per Neill LJ (p 167C).259.2 In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (Glidewell LJ at p 169F)259.3 Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things is of general application.259.4 The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. The act does not have to be of the same character as the earlier acts. It’s essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.259.5 The final straw need not be characterised as 'unreasonable' or 'blameworthy' conduct, even if it usually will be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy.259.6 The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality referred to.259.7 If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect.259.8 If an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign, soldiers on and affirms the contract, she cannot subsequently rely on these acts to justify a constructive dismissal unless she can point to a later act which enables her to do so. If the later act on which she seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.259.9 The issue of affirmation may arise in the context of a cumulative breach because in many such cases the employer's conduct will have crossed the Malik threshold at some earlier point than that at which the employee finally resigns; and, on ordinary principles, if he or she does not resign promptly at that point but "soldiers on" they will be held to have affirmed the contract. However, if the conduct in question is continued by a further act or acts, in response to which the employee does resign, he or she can still rely on the totality of the conduct in order to establish a breach of the Malik term.259.10 Even when correctly used in the context of a cumulative breach, there are two theoretically distinct legal effects to which the "last straw" label can be applied. The first is where the legal significance of the final act in the series is that the employer's conduct had not previously crossed the Malik threshold: in such a case the breaking of the camel's back consists in the repudiation of the contract. In the second situation, the employer's conduct has already crossed that threshold at an earlier stage, but the employee has soldiered on until the later act which triggers his resignation: in this case, by contrast, the breaking of the camel's back consists in the employee's decision to accept, the legal significance of the last straw being that it revives his or her right to do so.259.11 The affirmation point discussed in Omilaju will not arise in every cumulative breach case: “There will in such a case always, by definition, be a final act which causes the employee to resign, but it will not necessarily be trivial: it may be a whole extra bale of straw. Indeed in some cases it may be heavy enough to break the camel's back by itself (i.e. to constitute a repudiation in its own right), in which case the fact that there were previous breaches may be irrelevant, even though the claimant seeks to rely on them just in case (or for their prejudicial effect).” (per Underhill LJ). Unfair dismissal[260]Where there is found to be a constructive dismissal, the Tribunal must go on to consider whether the dismissal is unfair within section 98 Employment Rights Act 1996, as explained in the Respondent’s submissions.[261]The burden is on the employer to prove the reason or principal reason for dismissal is a potentially fair reason within section 98(2) ERA 1996.[262]If the employer has shown a potentially fair reason for dismissal, the Tribunal must consider the test of fairness within section 98(4) ERA 1996. The Tribunal must not substitute its view for what is reasonable in the circumstances. The question is whether the decision to dismiss is within the range of reasonable responses open to this employer in the circumstances.[263]The burden of proof on the test within section 98(4) ERA is neutral. Data Protection Data Protection Act 1998[264]Personal data means data which relate to a living individual who can be identified from those data: s.1(1) DPA.[265]Sensitive data is defined in section 2 DPA as information including an individual’s physical or mental health or condition, sexual life, and alleged commission of any offence.[266]For the purposes of the DPA, the term ‘processing’ applies to a comprehensive range of activities. It includes the initial obtaining of personal information, the retention and use of it, access and disclosure and final disposal.[267]Under section 1(1) DPA 1998, ‘processing’ in relation to information, means an operation or set of operations which is performed on information, or on sets of information, such as:• collection, recording, organisation, structuring or storage;• adaptation or alteration;• retrieval, consultation or use;• disclosure by transmission, dissemination or otherwise making available;• alignment or combination; or• restriction, erasure or destruction.[268]The data protection principles are set out in Schedule 1, which begins follows: “Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –(a) at least one of the conditions in Schedule 2 is met, and(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. 2 Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3 Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 4 Personal data shall be accurate and, where necessary, kept up to date. 5 Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 6 Personal data shall be processed in accordance with the rights of data subjects under this Act. 7 Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”[269]The Conditions relevant for the purposes of the First Principle, so far as they apply to personal data, are within Schedule 2; the relevant Conditions in respect of sensitive personal data are within Schedule 3.[270]Schedule 2 DPA 1998 includes: “The data subject has given his consent to the processing. 2 The processing is necessary –(a) for the performance of a contract to which the data subject is a party, or(b) for the taking of steps at the request of the data subject with a view to entering into a contract. 3 The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. 4 The processing is necessary in order to protect the vital interests of the data subject. 5 The processing is necessary - (a) for the administration of justice, (b) for the exercise of any functions conferred on any person by or under any enactment,(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or(d) for the exercise of any other functions of a public nature exercised in the public interest by any person. 6(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.” Data Protection Act 2018 and GDPR[271]The DPA 2018 extends the definition of “processing” to include that within the GDPR. Section 2 incorporates the provisions of the GDPR as to the protection of personal data. It includes at section 2(1): “(1) The GDPR, the applied GDPR and this Act protect individuals with regard to the processing of personal data, in particular by— (a) requiring personal data to be processed lawfully and fairly, on the basis of the data subject's consent or another specified basis,”[272]The GDPR prohibits the processing of personal data unless the controller is able to identify an appropriate legal basis for that processing. Article 6(1) of the GDPR sets out six lawful bases for processing. At least one of these lawful bases must apply whenever personal data is processed:(a) Consent: the individual has given clear consent for the data controller to process their personal data for a specific purpose;(b) Contract: the processing is necessary for a contract between the data controller and the individual;(c) Legal obligation: the processing is necessary for the data controller to comply with the law (not including contractual obligations); … … (f) Legitimate interests: the processing is necessary for the legitimate interests of the data controller or the legitimate interests of a third party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests.[273]As explained in the ICO’s Guide to the GDPR: “Many of the lawful bases for processing depend on the processing being “necessary”. This does not mean that processing always has to be essential. However, it must be a targeted and proportionate way of achieving the purpose. The lawful basis will not apply if you can reasonably achieve the purpose by some other less intrusive means. It is not enough to argue that processing is necessary because you have chosen to operate your business in a particular way. The question is whether the processing is necessary for the stated purpose, not whether it is a necessary part of your chosen method of pursuing that purpose.”
Conclusions
[274]A first reserved judgment day was listed for 8 April 2019. Given the voluminous evidence and the number of issues, a further reserved judgment day was required (24 June 2019) to enable the Tribunal to determine all the issues. This could have been avoided by the parties informing the Tribunal after exchange of witness statements that the time estimate was likely to be inadequate, explaining why. The parties failed to allow any time for the Tribunal’s deliberation and the formulation of the decision.[275]In any event, applying the above law and the findings of fact to the issues identified by the parties, the Tribunal reached the following conclusions. Jurisdiction: Issues 18 - 20[276]The Respondent’s argument (paragraph 116 written submissions) that all detriments occurring before 31 January 2018 were presented out of time ignores the benevolent effect of section 48(3)(a) ERA – which provides that an act forming part of a series of similar acts will be in time if the last act (or omission) of the series is in time. The Respondent’s submissions deal with the jurisdictional questions in a truncated way, failing to cite Arthur at all.[277]We noted the guidance in Arthur as to the meaning and effect of section 48(3)(a) ERA in contrast to the effect of section 48(4) ERA. At paragraph 31 in Arthur, Mummery LJ explained: “The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated oneoff acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them. Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the three-month period and those outside it. The necessary connections were correctly identified by Judge Reid QC as(a) being part of a “series” and(b) being acts which are “similar” to one another.”[278]The majority in Arthur explained that whether there was a series of similar acts would depend on the circumstances of the case. Put another way, it is a question for the Tribunal.[279]At paragraph 35 of Arthur, the Court gave some limited guidance on relevant facts, such as whether there was a connection between perpetrators, and whether they had acted in concert. The majority held that it was possible for a series of disparate acts to form part of a series of similar acts if they were all done on the grounds of a protected disclosure or disclosures.[280]Directing ourselves in law correctly, we reached the following conclusions on whether the Tribunal had jurisdiction to consider the detriments that we found had flowed from protected disclosures:280.1 The detriment complaint at issue 7(1) was presented outside the time limit within section 48(3)(a) ERA. On the findings of fact at paragraph 94-96, it did not form part of a series of similar acts. There was no evidence that it was not reasonably practicable to present this complaint in time. The Tribunal has no jurisdiction to consider this complaint.280.2 The detriment complaint at issue 7(2) was not part of the Claim. The Tribunal has no jurisdiction to determine it. In any event, this complaint was not part of a series of similar acts, and was brought out of time.280.3 The detriment complaint at issue 7(3) was presented outside the time limit within section 48(3)(a) ERA. On the findings of fact (paragraphs 94-105), it did not form part of a series of acts. There was no evidence that it was not reasonably practicable to present this complaint in time. The Tribunal has no jurisdiction to consider this complaint.280.4 The detriment complaints at issues 7(4) – 7(5) were presented outside the three month time limit within section 48(3)(a) ERA. On the findings of fact, arguably, these formed part of a series of similar acts, but the last of these was in December 2017. Although the Claimant was absent sick by week commencing 11 December 2017, it was reasonably practicable to present these complaints in time, taking into account other steps taken by the Claimant during the primary limitation period. The Tribunal has no jurisdiction to consider these complaints.280.5 The detriment complaints at issues 7(6) – 7(8) were presented out of time. We accepted that they formed part of series of similar acts of detriment, arising from the Respondent’s beliefs about misconduct by the Claimant particularly in travelling to Dubai to assist the Compliance Director. Although the Claimant was absent sick in the weeks leading up to her resignation, it was reasonably practicable to present these complaints in time, taking into account other steps taken by the Claimant during the primary limitation period.280.6 Issue 7(9) alleges a failure to genuinely investigate the Claimant’s grievance and the protected disclosures within it. We found that the failure to act in this case was probably determined shortly after the receipt of the grievance on or about 15 December 2017. However, we found that it formed part of a series of similar acts. We found that this was part of a series of similar acts, specifically that this failure to act was part of a series of acts and omissions done on the ground of the Claimant’s protected disclosures in her grievance. Moreover, it formed part of a series of acts, along with the detriments at issues 8(1) to 8(3), aimed at potentially damaging her earning capacity and discouraging her from pursuing claims against the Respondent. Accordingly, we found that the Tribunal had jurisdiction to consider this complaint, because the detriment complaints at 8(1) and 8(3) were brought in time.280.7 The detriment complaints at issues 7(10) – 7(11), 7(15)(iii) and 7(15)(vi) were presented out of time. We accepted that they formed part of series of similar acts of detriment, arising from the Respondent’s beliefs about misconduct by the Claimant and the decision to dismiss but the last of the series was not in time. Although the Claimant was absent sick in the weeks leading up to her resignation, it was reasonably practicable to present these complaints in time, taking into account other steps taken by the Claimant during the primary limitation period.280.8 The complaints at issue 7(12) and 7(15)(ii) were presented in time. The detriment would arise each time a deduction of wages is made in the form of SSP, and the last in the series of deductions would be made in time (see paragraph 29 in Arthur).280.9 The detriment complaints at issues 7(15)(iv-v) are in time insofar as they relate to the Respondent’s misuse of the Claimant’s personal data (and by refusing to delete it) after the termination of her employment. We repeat our conclusions on jurisdiction in respect of issue 8(3) below.280.10 The detriments at issues 7(15)(vii and ix) formed part of a series of similar acts. This series included those at issue 7(9), 8(1) and 8(3). For the reasons given in respect of jurisdiction for issue 7(9) above, we find that these complaints were made in time and the Tribunal has jurisdiction to consider them.280.11 The detriment at issue 7(15)(viii) occurred on or about 28 February 2018. It was clearly brought in time. The Tribunal has jurisdiction to determine this complaint. Moreover, this formed part of the series of similar acts referred to in our conclusions on issues 7(9) and 8(1) to 8(3).280.12 The Respondent’s allegations underpinning the detriment at issue 7(15)(x) were not made to the FCA until 5 February 2018 (p1106). This complaint is therefore presented in time. In any event, we found that this formed part of a series of similar acts, which was the same series referred to our conclusions at 7(9) above.280.13 The post-termination detriments at issues 7(15)(xi)-(xii) and 8(1) (i and ii) are clearly in time, evidenced by the letter from the Respondent’s solicitor dated 13 April 2018.280.14 The detriment of misleading the FCA (issue 7(15)(x) and 8(2) occurred when the Form C was received by the FCA. This would probably have been on or about 20 December 2017 (we found that it was probably sent electronically). Applying section 48(3)(a) and the guidance in Arthur, we found that this was part of a series of similar acts, and that this act was done on the ground of the Claimant’s protected disclosures in her grievance, and the detriments at issues 8(1) and 8(3), which were designed to give the Respondent leverage against the Claimant, by potentially damaging her earning capacity, and to discourage her from pursuing claims against the Respondent. Further, and in any event, the last in the series of letters from the Respondent to the FCA was dated 5 February 2018. Accordingly, we found that the Tribunal had jurisdiction to consider this complaint.280.15 The post-termination detriment at issue 8(3) is in time. We concluded that this failure to act was probably decided upon by the date of the relevant correspondence from the ICO, by or about 26 March 2018 (p.1566). Issue 1: Constructive Dismissal[281]From all the circumstances, the Tribunal concluded that the Respondent, including the CEO, Mr. Pusco, formed the belief, supported by the complaint about Compliance by the Head of Sales, Mr. Boissiere, that the Claimant was, through her performance in her role of Compliance Director, obstructing the completion of deals. This was viewed as misconduct by the Respondent. We refer to the facts at paragraphs 69-86 above, particularly paragraphs 83-84 (noting that the Claimant’s decision-making was alleged in the Grounds of Response to be “becoming increasingly arbitrary and may have become a tool that the Claimant was using to exert unfair power over her colleagues.”, which was an allegation that we found to be untrue), and paragraph 144.[282]We found that the Respondent lacked any or any reasonable grounds for its belief in misconduct: producing examples of delayed withdrawals did not, without more, show any failing by the Compliance Team or the Claimant. Indeed, it was just as consistent with the Compliance Team making proper investigations and reports.[283]There was no real or adequate investigation into the Claimant’s conduct or performance (and, certainly, no reasonable investigation) before the Respondent and its CEO formed this belief in misconduct by the Claimant.[284]We accepted Mr. Friend’s evidence about the number and type of clients that the Respondent was attracting. These developments were not appreciated by Sales or Mr. Pusco, and consequently no forward planning had been made by the Respondent. Instead, the Claimant was treated to be at fault due to the fact that she was manager of the Compliance function. This resulted in the Respondent’s CEO and Board requiring the Claimant to give information about SARs to employees not related to Compliance, despite the risk that this could lead to clients being tipped-off about the referral, thus potentially frustrating the framework to prevent money-laundering.[285]This matter culminated on or about 22 November 2017, with Mr. Pusco believing that the Claimant was “blocking” the withdrawal without any reasonable grounds.[286]Given that the Claimant held statutory responsibility for ensuring anti-moneylaundering procedures were respected (in her MLRO role and as CF11), her treatment in this matter was detrimental. She held a legal responsibility to ensure that the Respondent complied with anti-money laundering regulatory provisions. We found that requiring the Claimant to give information about SARs to persons (such as in Sales) not related to Compliance, was capable of being part of a sequence of events entitling her to resign, if it did not amount to a breach of the implied term of trust and confidence in itself.[287]Further, the Respondent blamed the Claimant for the delay in implementing MFID and MFIR despite the fact that the operational side of the implementation was supposed to be dealt with by a project manager in the Risk Department. We refer to our findings at paragraphs 88 to 105 above.[288]Although the Claimant was shouted at by Mr. Draghi in the meeting on 26 October 2017 by way of a form of disciplinary sanction (“a kind of verbal warning”), there were no reasonable grounds for blaming or warning the Claimant. This treatment was capable of forming part of a sequence which destroyed the relationship of trust and confidence, not least because the Claimant was Head of Compliance across the business and had been shouted out in front of her subordinate and directors, without any reasonable cause.[289]In respect of the Compliance visit to Dubai in December 2017, on learning that the Claimant was in Dubai, the Respondent jumped to the belief that the Claimant was guilty of gross misconduct by travelling to Dubai with the Compliance Director, when she was supposed to be absent sick, without any proper or adequate investigation.[290]As we have explained, the Respondent’s belief was that the Claimant had used her sickness as a ruse to travel to Dubai, because, so it believed, she knew that the CEO had not wanted her to attend. We found as a fact that this suspicion arose because the Respondent was looking to force the Claimant from the business by this time, due to the perception of the CEO and the directors in the areas of the business other than Compliance that she was largely responsible for delayed withdrawals and the MFIR/MFID implementation issues. As a result, it jumped to the conclusion that was most convenient for it - namely that she had committed gross misconduct.[291]This conclusion was reached before any proper or adequate investigation was made, demonstrated by Mr. Gee making surreptitious inquiries of the Claimant’s GP Surgery, but not seeking to interview the Claimant or Mr. Friend directly. This was not a professional approach to an investigation, nor was it fair. Any investigation should have been looking for exculpatory evidence as well as evidence of misconduct.[292]There were no reasonable grounds for the belief that the Claimant was guilty of gross misconduct or breach of contract by travelling to Dubai. We have found, as facts, that that she did not know that Mr. Pusco had stated that she should not go on the visit, that she went on the visit at the request of the Compliance Director in order to assist him (despite the fact that he knew she was due to be absent from work due to ill-health), and that she worked for the Respondent whilst she was there. We refer to our findings at paragraph 117 to 139 above.[293]The Tribunal repeats the detriments to the Claimant set out in its findings of fact at paragraphs 138 – 139 (prevented from access to her email account), 144, 151 – 152 (her replacement by the employment of Mr. Gordon), 153 (staff members indicating that they had been informed that the Claimant had been dismissed), 190 (the letter charging her with gross misconduct), and 192 (her job being advertised whilst she was still in post).[294]The Tribunal concluded that the false allegation made on 29 January 2018 that the Claimant had provided false information when completing the FCA Form A was detrimental treatment capable of amounting to a last straw in this case and also capable of amounting to a breach of the implied term of trust and confidence in itself – and thus an entirely new bale of straw, applying the analogy used by the Court in Kaur. We found that this action was calculated to, or (at least) very likely to, destroy the relationship of trust and confidence necessary for any employment relationship. In reaching this conclusion, we noted that this was a serious allegation, which potentially had consequences for the career (or career progression) of the Claimant, particularly for any role sought in which she may have had dealings with the FCA.[295]Given all the above points, the Tribunal concluded that the Respondent breached the implied term of trust and confidence on 29 January 2018.[296]In all the circumstances, the breach of the implied term of trust and confidence caused the Claimant to resign on 2 February 2018, thereby causing the dismissal in law.[297]In these circumstances, we found that there was no waiver of the breach of the implied term nor affirmation of the contract of employment.[298]Given our conclusion that the repudiatory conduct of the employer was the sole cause of the dismissal, we did not need to consider the effect of Wright v North Ayrshire Council [2014] IRLR 4. We found that the Claimant’s case as to why she resigned was consistent throughout, which was that it was due to the conduct of the employer; and this case was corroborated by the words of her complaint to the FCA. In contrast, the Respondent put forward two bases to explain why the Claimant resigned (a new job and to avoid a finding of gross misconduct); and the Tribunal rejected both that the Claimant was guilty of any misconduct and that she resigned because of a new role.[299]The Respondent relied upon Atkinson v Community Gateway Association [2014] IRLR 834, at paragraph 34. But given the above conclusions and the findings of fact, demonstrating that the Claimant did not breach the implied term of trust and confidence, the passage relied upon was not relevant. Issue 2: What was the reason for dismissal? Was there an automatically Unfair Dismissal pursuant to section 103A ERA 1996?[300]As we have explained above, we found that the Claimant was blamed without reasonable (or any) grounds due the difficulties experienced with clients by the Sales team over delayed withdrawals and due to difficulties over the implementation of MFID and MFIR.[301]We have concluded, however, for the reasons set out in our findings of fact and within our conclusions at Issue 1 above, that the reason or principal reason for the breach of the implied term of trust and confidence (leading to the constructive dismissal) was not one or more protected disclosures. Accordingly, the complaint of automatic unfair dismissal under section 103A ERA is not upheld.[302]We have also concluded that the dismissal was not because of the Claimant’s sex. The breaches of her contract of employment, including the repudiatory breach or last straw of 29 January 2018, were not influenced by her sex.[303]As we have explained in our findings of fact, and our above conclusions, the repudiatory breach entitling the Claimant to resign was not made by the Respondent because of a protected disclosure by the Claimant. Issue 3: Section 98(4) ERA: Was the constructive dismissal fair or unfair?[304]Although the Respondent believed that the Claimant was guilty of gross misconduct, in respect of the trip to Dubai, this was a belief which was not based on reasonable grounds, nor any reasonable or proper investigation. It was a reaction fed by the CEO’s desire to see the Claimant removed from the business given the complaints made against her.[305]Further, we concluded that there was no genuine belief that the Form A had been falsely completed.[306]A decision to dismiss the Claimant had been made by the Respondent well before the resignation: see our findings at paragraph 159 above. There was no procedure of any sort applied prior to this decision to dismiss being made.[307]We concluded that the constructive dismissal was not within the band of reasonableness. We find that the Respondent had acted in such a way as to destroy the relationship of trust and confidence.[308]The Respondent had made no attempt to comply with the ACAS Code of Practice on Disciplinary matters before reaching its decision to dismiss. It acted so as to destroy the relationship of trust and confidence without any reference to basic procedural safeguards such as a fair investigation or a fair hearing before reaching its conclusions. Issues 4-6: Protected Disclosures[309]We concluded that the Claimant did make certain protected disclosures both prior to her constructive dismissal and after her dismissal.[310]We agree with Ms. Mayhew’s submission that the Claimant was an “insider”, as a Compliance professional and FCA Approved Person. Also, we accept and apply the EAT guidance in Korashi. As an “insider”, the Claimant’s insight entitled her views to respect. The test is what was her reasonable belief, and that belief must be subject to what a person in her position (Head of Compliance and CF11) would reasonably believe to be wrongdoing. We found that, in respect of each disclosure that we found was made, the Claimant held a reasonable belief of one of the matters within section 43B(1) and that many of her disclosures were made in the public interest, as set out in the findings of fact.[311]Despite our conclusions in respect of jurisdiction, by which several complaints must fail, we have decided to set out our conclusions on each of the issues to assist the parties to fully understand our reasons.[312]Our conclusions on issue 4 are as follows. Issue 4.1: 1 June 2017[313]The Respondent admitted that, if this conversation took place as alleged, it was accepted that the information disclosed was information which fell within section 43B(1) ERA. But the Respondent contended that the Claimant lacked the requisite reasonable belief.[314]From the Claimant’s evidence, and the reaction of Mr. Friend and Mr. Scarabino to Mr. Pusco’s request, the Claimant believed that her disclosure to Mr. Friend on 1 June 2017 tended to show breach of a legal obligation in the form of the Capital Adequacy rules set by the FCA in the IFPRU part of the handbook, and potentially, attempted fraud (in that this account could be used by Mr. Pusco to balance the risk of exposure, amounting to a deliberate misrepresentation of the actual financial state of the Respondent), or that such matters were likely to be deliberately concealed by the act of her opening a personal account for Mr. Pusco in a confidential way.[315]We inferred from the facts that her belief was reasonable. The fact that her belief was reasonable is corroborated by the conversation that followed between Mr. Friend and Mr. Scarabino described at paragraphs 53 to 55 above. We rely, in particular, on our findings of fact at paragraphs 58 to 66 above.[316]We have considered Korashi. In the present case, the fact that the Claimant was a Compliance professional did not mean that she did not hold the requisite reasonable belief. It is clear from the evidence, including the discussion between Mr. Friend and Mr. Scarabino after the request was made, that any competent employee in the Claimant’s CF11 role would have seen this request as inappropriate and suspicious. Set in its proper context, and not the Respondent’s implausible version of events, such a belief was entirely reasonable.[317]We do not accept the Respondent’s submission that the disclosure was not in the public interest, nor that the Claimant was approached about how to carry out an action within the parameters of the Respondent’s policies or the FCA rules.[318]We concluded that the Claimant had a reasonable belief that the disclosure was in the public interest. The disclosure went far beyond her interest as a Compliance Manager. There was potentially client money at risk if the provisions concerning the capital adequacy of the Respondent were avoided. Further, there was a public interest in upholding the FCA regulatory framework, in part to maintain a credible financial system. Issue 4.2(a) – 7 September 2017[319]The Tribunal repeats its findings of fact set out above at paragraphs 79-87.[320]The Tribunal considered whether the disclosure made was a disclosure of information, or an allegation. We concluded that it was a disclosure of information, albeit wrapped within an allegation. The Claimant disclosed that the Respondent was breaching the FCA regulation against tipping off.[321]We concluded that the Claimant reasonably believed that this disclosure tended to show a breach of a legal obligation.[322]The Tribunal considered the guidance in Chesterton Global. We concluded that the Claimant made this disclosure in the public interest. It was in the public interest for her to comply with the duties imposed on her by the FCA and POCA to avoid the risk of tipping off, to further the prevention of the risk of money laundering of funds illegally raised. The disclosure was not made simply because it was in her interest not to be criminally liable.[323]The Tribunal reminded itself that the requirement that disclosures must be reasonably believed to be made in the public interest in order to be protected should not be converted into a trump card for financial firms when public interest disclosure complaints are brought by Compliance professionals. The facts of cases will vary. We noted that when the Employment Rights Act 1996 was amended to include Part IVA, and which was amended in 2013, Parliament did not decide to distinguish classes of professional who did not qualify for protection. Issue 4.2(b) – 21 November 2017[324]The Claimant did not lead any evidence about a protected disclosure on this date. We found this allegation was probably included in error. Issue 4.2(c) – 11 December 2017[325]The Claimant did not lead any evidence about a protected disclosure on this date. We found that no protected disclosure was made on this date. Issue 4.2(d) – 15 December 2017 (allegation within grievance of being asked to disclose SAR information to others)[326]The grievance included disclosures of information. Our reasons are set out in the findings of fact at paragraphs 160 – 164 above.[327]We also found as a fact that the Claimant reasonably believed that the disclosures in respect of breach of the anti-money laundering provisions, by being required to disclose SAR information to staff unrelated to Compliance, including the Head of Sales, were made in the public interest for the reasons set out in paragraph 162.[328]We accepted the Claimant’s evidence on this point. We concluded that the adherence to Compliance rules by the Respondent firm was in effect to comply with FCA rules which were made in the public interest to protect clients and uphold laws. It was reasonable for the Claimant to form the belief that any wrongdoing could impact on clients of the Respondent but, more particularly, have an adverse impact on confidence in the financial sector as a whole and enable criminals to launder money which was from illegitimate sources, which would be likely to affect the interest of the wider public. Issue 4.3(a) – 7 September 2017 (allegation of disclosure of sex discrimination)[329]The Tribunal repeats the findings of fact at paragraph 87 above. We find that no such disclosure of information was made on this date. Issue 4.3(b) - 26 October 2017 (allegation of disclosure of sex discrimination by being shouted at)[330]The telephone call made by the Claimant to Mr. Friend contained a disclosure of information, specifically that she had been shouted at by Mr. Draghi in a meeting, in front of Ms. Patel, a subordinate.[331]This disclosure, however, did not tend to show one of the matters within section 43B(1).[332]Moreover, this disclosure was not made in the public interest. It was made in the interest of the Claimant, who was personally targeted for criticism within the meeting of 26 October. Issue 4.3(c) – 15 December 2017 (allegation of disclosure of sex discrimination within grievance)[333]The grievance included disclosures of information. Our reasons are set out in the findings of fact at paragraphs 160 – 164 above.[334]We also found as a fact that the Claimant reasonably believed that the disclosures in respect of sex discrimination were made in the public interest for the reasons set out in paragraph 162.2 above.[335]The Respondent did not dispute that the grievance contained protected disclosures, limited to the disclosure about sex discrimination, but that this disclosure or disclosures were made in bad faith. We rejected this argument, for the reasons set out in paragraphs 164 and 169 above. Issue 4.4 – Grievance in relation to not being able to convert sickness absence to holiday and the Respondent allegedly contacting the Claimant’s GP without her permission[336]We repeat our findings of fact at paragraph 165 – 167 above.[337]The Claimant did make the two disclosures of information alleged.[338]However, we found that these disclosures were made in her personal interest, rather than the public interest, for the reasons explained in paragraph 167. Issue 5[339]It was not contended by the Respondent that it could not be found liable for detriments arising from post-termination protected disclosures; and the Tribunal has directed itself in law by applying the principles in Onyango v Berkeley. We concluded that the facts in this illustrated why the law was required to be wide enough to protect former employees such as the Claimant in this case. In this case, the Claimant was forced to make further protected disclosures (such as to the ICO) because of detriments suffered as a result of protected disclosures made during her employment.[340]We found that although the Claimant did make post-termination protected disclosures, but these did not have a material influence on the detriments relied upon. Issue 5.1: to the FCA on 19 January 2018 (attaching her grievance of 15 December 2017)[341]Despite its categorisation in the list of issues, this was not a post-termination protected disclosure.[342]We have explained at paragraphs 160-162 that certain disclosures of information contained within the grievance were made in the public interest and were protected disclosures. These were disclosures which the Claimant believed tended to show breach of the obligation not to tip off investors, defined in section 333 POCA 2012 and breach of the obligation not to discriminate against employees because of sex, within section 13 EA 2010. We found that the Claimant’s beliefs were reasonable in the circumstances, given her knowledge and experience as Head of Compliance.[343]We concluded that they were protected disclosures made in the public interest when repeated to the FCA by the Claimant on 19 January 2018. (findings of fact at paragraphs 185-187 above).[344]In this disclosure to the FCA, the Claimant was going beyond merely explaining her position, but included the alleged regulatory breaches referred to in her grievance. Part of the complaint was in essence that she had been victimised for the disclosures made: see, especially, p.841 (top paragraph).[345]The Claimant reasonably believed that the disclosures made within her grievance, and to the FCA, were true. Further, we concluded that they were made in good faith.[346]We concluded that the disclosures to the FCA were qualifying disclosures made to a prescribed person within section 43F ERA. We do not accept that these disclosures to the FCA were “general employment related grievances” as the Respondent submitted.[347]The Claimant reasonably believed that the subject matter of these disclosures fell within the remit of the FCA, and reasonably believed that the information and allegations made relevant to regulatory breaches were substantially true.[348]As we have noted, the Claimant was a Compliance professional. The Claimant was able to explain in evidence why the information disclosed concerning regulatory breaches relevant to the FCA’s remit and powers was substantially true and demonstrated that her belief that her disclosures fell within the FCA’s remit was reasonable.[349]As we have explained in paragraph 187, however, the Respondent did not know of the protected disclosure to the FCA at the date of the detriments relied upon. Issue 5.2: to the Information Commissioner’s Office on 6 February 2018[350]Part of the substance of this disclosure (or disclosures) is set out in the List of Issues. The Claimant’s complaint to the ICO is at pp.1104 and 1561 in which she complained of breaches of her data protection rights which she alleged amounted to victimisation for protected disclosures.[351]We concluded that all the disclosures to the ICO (including those considered under issue 5.3) were qualifying disclosures made to a prescribed person within section 43F ERA.[352]The Claimant reasonably believed that that the information disclosed to the ICO was true.[353]However, in our findings of fact (at paragraphs 200-202), we found that this disclosure was made in the Claimant’s personal interest, even though we accept that she believed that it was made in the public interest. It was not made in the public interest, but in the Claimant’s personal interest. We noted that the four factors set out in Chesterton Global at paragraphs 36 and 37 were not present. If such a disclosure were held to be in the public interest, we found that most disclosures to public bodies would also be in the public interest, which we decided was inconsistent with the careful wording and structure of this part of the ERA 1996. Accordingly, we concluded that this disclosure was not a protected disclosure. Issue 5.3: through her solicitor and by herself to Respondent’s solicitor, Respondent and the ICO[354]As we have explained in our findings of fact at paragraphs 198-199, the disclosures made by the Claimant and her solicitor in correspondence to the Respondent and its solicitor is part of anticipated litigation. The information disclosed is not made in the public interest, but in the private interest of the Claimant, setting out her position ahead of litigation.[355]As we have explained at paragraphs 205-207, we found that the Claimant made a disclosure of information to the ICO on 8 April 2018, which tended to show that the Respondent had breached its obligations to comply with the Data Protection Act 1998. This relevant disclosure (“The Firm also failed to meet the deadline of the SAR. To date, I have no communication on the matter whatsoever”) was not merely an allegation. Taking account of Kilraine, the disclosure had sufficient factual content and specificity to amount to a disclosure of information.[356]We concluded that, by this disclosure of 8 April 2018, the Claimant was not raising purely personal matters, but bringing to the attention of a relevant Regulator that there was a breach of the system of regulation, by the Respondent’s failure to obey the regime applying to those holding personal data.[357]We found that this was made in the public interest. We concluded that this was a protected disclosure.[358]We concluded that the other disclosures relied upon by the Claimant under this issue were not protected disclosures, as explained in the findings of fact. Issue 6[359]The conclusions dealing with issues 4 and 5 incorporate our conclusions in respect of issue 6, where necessary. Issues 7-9: Detriments under section 43B ERA 1996[360]For completeness, we have provided our conclusions on each alleged detriment.[361]As we have explained in our findings of fact, the Respondent did subject the Claimant to various detriments. We have considered each alleged detriment in turn and considered whether the reason that the Claimant was subjected to it was materially influenced by the fact that the Claimant had made a protected disclosure. In other words, we have combined our conclusions on issues 7 and 9, and issues 8 and 9. Issue 7(1)[362]The treatment set out at issue 7.1 was a detriment to the Claimant. Our findings of fact are at paragraphs 94-96 above. There was no reason at all to justify why the Claimant should have been subjected to the “kind of verbal warning” made by Mr. Draghi shouting at her, in front of her subordinate and other directors. Any employee in the Claimant’s position would have considered this action to be a detriment.[363]However, we concluded that this detriment was not materially influenced by the protected disclosures made on 1 June or 7 September 2017. We repeat the findings of fact at paragraph 96 above: Mr. Draghi shouted at the Claimant because he was frustrated, because of the realisation that the Respondent had not up to that date collected necessary data, and that the project manager for it lay in his team, making it his own responsibility. Issue 7(2)[364]The treatment set out at issues 7.2 was not pleaded in the Claim. Issue 7(3)[365]The treatment set out at issues 7.3, accusing the Claimant of non-existent wrongdoing in relation to MFIR reporting, was a detriment to the Claimant. She reasonably believed that her treatment was to her detriment. Our findings of fact are at paragraphs 94 - 105 above.[366]However, we concluded that this detriment was not materially influenced by the protected disclosures made on 1 June or 7 September 2017. Issue 7(4)[367]The treatment set out at issue 7.4 was a detriment to the Claimant. Our findings of fact are mainly at paragraphs 69-87, 99-103, 111 and 144 above.[368]Applying the definition of detriment within Shamoon, we consider that a reasonable worker in the Claimant’s position as MLRO and CF11, would view the questioning of the Claimant and/or her team in respect of SARs, and requiring the disclosure of SAR information to unrelated staff, the Head of Sales and Finance Director, as a detriment. In particular, a Compliance officer in the CF11 role has a legal duty to disclose whether they know or suspect, or have reasonable grounds for doing so, that a person is engaged in money laundering; moreover, the Compliance team and the CF11 role-holder must not act so as to tip-off clients about investigations or SARs.[369]We concluded that the Head of Sales and the Finance Director were staff who were not part of the Compliance function. They were not directly related to it. The effectiveness of the Compliance function, and the duty not to tip-off clients, would potentially be compromised if those with customer relationships to maintain knew of SARs.[370]However, we concluded that this detriment was not materially influenced by the protected disclosures made up to the grievance of 15 December 2017. Issue 7(5)[371]The treatment set out at issues 7.5 was a detriment to the Claimant. Our relevant findings of fact are at paragraph 144 above. Even though the Claimant was absent sick on the 11 December 2017, we concluded that, applying Shamoon, this was to her detriment. The Claimant was the head of the Compliance team; she had a deputy in place (Ms. Patel) and a Compliance director above her. A reasonable worker in her position would take the view that in these circumstances, there was no reason to depart from the usual procedure where the Compliance team made an independent decision on whether to investigate or refer. After all, as the CF11 Officer, the Claimant remained responsible in law for such decisions made in the Compliance area.[372]As we explain in our findings of fact, however, the reasons for the actions of the Respondent in respect of this issue were not influenced by the protected disclosures made earlier in the year. On 11 December 2017, Mr. Pusco instructed the Compliance Team to run SARs by him and the Finance Director, prior to submission to the NCA for the following reasons: the Claimant was absent sick; the Respondent had a misplaced belief that she was guilty of gross misconduct; and Mr. Pusco had decided that the Sales department concerns were to carry more weight than Compliance concerns, building upon earlier discussions after Compliance were alleged by Sales management to be blocking withdrawals without cause. Issue 7(6)[373]The Tribunal found as a fact that the Claimant’s access to her work e-mails was prevented from about 8-9 December 2017. We rejected the Respondent’s case that this did not happen until 15 December 2017 for reasons given in paragraph 138-139 above.[374]We found that this treatment set out at issue 7.6 was a detriment to the Claimant. A reasonable worker in her position, who was responsible for ensuring anti-money laundering provisions were complied with, would view such treatment as detrimental, even if she was absent sick at the time.[375]We concluded, however, that the reason for this treatment was the Respondent’s belief that the Claimant was guilty of gross misconduct; it had nothing to do with the protected disclosures alleged up to 8 December 2017. Moreover, any protected disclosures made on 11 December 2017 or within the grievance of 15 December could not have had any effect on this decision (which was taken before these dates). Issue 7(7)[376]A reasonable worker would or might take the view that failing to provide documents that the Claimant had requested as part of the disciplinary process was a detriment to the Claimant.[377]We concluded, however, that the reason for this treatment had nothing to do with the protected disclosures alleged up to that time. We repeat our findings of fact at paragraph 177 above. Issue 7(8)[378]The treatment set out at issue 7(8), allowing access to the information within the Claimant’s remit as holder of the CF11 function, and without the Claimant’s knowledge, would or might be viewed as a detriment by a reasonable worker.[379]Our findings of fact include, at paragraphs 151, 152 and 188.1, that this concerned the Claimant because she remained legally responsible for this controlled function, and a person unknown to her was making decisions for which she could be criminally liable as MLRO.[380]The submissions at paragraph 99 of the Respondent’s closing submissions do not reflect the evidence heard by this Tribunal; no witness suggested that junior employees in Compliance requested that Mr. Pusco, Mr. Scarabino or Mr. Boissiere stepped into a Compliance role.[381]In terms of causation, however, we concluded that this treatment was not materially influenced by any protected disclosure made prior to 13 December 2017. Issue 7(9)[382]We concluded that there was a failure to genuinely investigate the Claimant’s grievance and the protected disclosures within it. We repeat our relevant findings of fact, particularly at paragraphs 60-65, 148 – 149, 170 - 171 and 104-105. Such treatment would be viewed by a reasonable worker as a detriment.[383]We concluded that this treatment of the Claimant by the Respondent was materially influenced by the fact that she had made the protected disclosures and complaints of sex discrimination set out in her grievance, albeit that those matters were not the only cause of the treatment. An additional cause of this particular detrimental treatment was the Respondent’s belief that the Claimant was guilty of gross misconduct. Issue 7(10)[384]The list of issues refers to a refusal to delay the Claimant’s disciplinary process (although the Respondent believes that the list is inaccurate and should refer to the grievance of 15 December 2017). In fact, as shown by paragraph 48.1 of the Claim (p.23), the Claimant complained that the Respondent refused to delay both the disciplinary process and the grievance process despite her illness.[385]A reasonable worker would or might view this treatment set out as a detriment to the Claimant.[386]However, we found that this decision (or decisions) was not materially influenced by the protected disclosures made by the Claimant up to this point. Our findings of fact are at paragraph 172 above. In short, the reason for the refusal to delay both processes was that the decision to dismiss had already been made. Issue 7(11)[387]We concluded that a reasonable worker would or might find that initiating a recruitment process for a replacement for the Claimant, prior to informing her that the decision to dismiss had been made and giving her notice of dismissal, was a detriment.[388]We concluded that this treatment was not influenced in any way by any protected disclosure up to the time of the employment of Mr. Gordon. We concluded that the recruitment process was initiated because at that time the Respondent believed, unreasonably, that the Claimant was guilty of gross misconduct. Issues 7(12) and 7(15)(ii)[389]The treatment set out at issue 7(12) (paying SSP yet claiming suspension) was not a detriment to the Claimant. It was in reality further evidence relevant to issue 7(14) and the facts found at paragraphs 173 to 175 above. Issues 7 (13) and 7(15)(i)[390]We concluded that a reasonable worker would be unlikely to view the refusal to treat sickness absence as annual leave as a detriment.[391]In any event, we concluded that, at the time of this treatment, the Respondent was not materially influenced by any protected disclosure. We repeat the findings of fact at paragraph 143. Issues 7(14) and 8(3)[392]We found that the Respondent did misinform the FCA by stating that the Claimant was suspended when this was not the case. Our findings of fact are at paragraphs 173 to 175 above.[393]We concluded that this treatment would be viewed by a reasonable worker as a detriment.[394]We concluded that the decision to complete the Form C with a false statement was entirely caused by the protected disclosures and the allegation of sex discrimination within the Claimant’s grievance. We repeat the findings of fact at paragraph 175. We find that this act by the Respondent was retaliation for the Claimant making the protected disclosures within her grievance. Issue 7(15)(iii):[395]We find that a reasonable worker would not or might not view the treatment set out at issue 7(15)(iii) as detrimental.[396]In any event, we concluded that, at the time of this treatment, the Respondent was not materially influenced by any protected disclosure. We repeat the findings of fact at paragraphs 178-181. Issues 7(15)(iv)-(v) and 8(3)[397]The Tribunal concluded that the Claimant did not use the term “sensitive personal data” to mean only personal data which met the definition of “sensitive” in section 2 DPA. The Claimant meant this term to apply to personal data which was highly personal data involving family and private life matters. The agreed list of issues demonstrates that the Respondent understood this. We heard no argument that the Claimant was somehow restricted to the definition at section 2 DPA.[398]We have found that, when the Claimant was employed, the Respondent was entitled to access the Claimant’s personal data and information that she alleged to be confidential which was held on the Respondent’s computer. We have explained why in paragraph 183 above. We concluded that the Respondent had a contractual right to do so: see Claimant’s contract at paragraph 4.4 (p.101).[399]In contrast, however, we found that the Respondent did misuse the Claimant’s sensitive, highly personal, data, involving her family and private life, by refusing to delete it after the termination of her employment, which occurred on 2 February 2018. There was no contractual right to retain her personal data after her employment ended.[400]In this regard, we found paragraph 65 of the ET3 misleading, by stating that the Claimant had been told to collect a memory stick on 26 February 2018, which was only collected in May 2018. We found that this was misleading because the Respondent continued to retain the Claimant’s personal data (irrespective of what was copied onto the memory stick). We found that this allegation in the ET3 was an attempt to conceal the true position.[401]We repeat our findings of fact (at paragraphs 212-215) in respect of the continued holding of personal data after termination of the Claimant’s employment. There was no factual basis that made it necessary to obtain legal advice about the sensitive personal data found on the work PC. As we explain above, we inferred that the Respondent retained all the Claimant’s personal data because of the protected disclosures in her grievance as explained in the findings of fact. The Respondent retained it as a tool, in an attempt to make the Claimant back away from legal action.[402]We concluded that this treatment, the retention of sensitive personal data, including data referring to a sexual assault, would be viewed by a reasonable worker as a detriment. The Claimant strongly believed that it was a detriment, leaving her feeling “absolutely violated” (see p.1309).[403]In the Respondent’s written submissions, it is stated that the Respondent had placed all the Claimant’s data on a memory stick held by the data protection officer, and that it will only be used in relation to legal claims and regulatory requirements. This does not explain what legal claims or requirements were, as a matter of fact, justification for this approach and nor did the Tribunal hear evidence about this.[404]Further, the data was not placed on a memory stick and held in this way until about 6 September 2018 (see witness statement of Mr. Gee at paragraph 79). We heard no evidence or argument to justify the delay in removing the personal data from its system between 2 February and 6 September 2018.[405]In any event, we concluded that the Respondent had no legal basis to retain the Claimant’s personal data up to the point of the hearing in this case.[406]We considered the Respondent’s purported justification for retention of the data. It advanced various reasons, set out in its letter to the ICO which is at C1. This letter was sent in response to the ICO’s letter of 21 January 2019.[407]We accepted that the Respondent may have had a legal ground for retaining part of the personal data under Schedule 2 DPA 1988, if it believed that the FCA might investigate following its completion of the Form C.[408]One difficulty for this part of the Respondent’s argument is that we found that the Respondent had no genuine belief in its allegation that the Claimant had falsely completed the Form A at the outset of her employment.[409]In any event, it must have been obvious to the Respondent from about the end of May 2018 that the FCA were not going to investigate the Claimant further. The letter from the Respondent’s solicitor of 23 July 2018 (p.1784) states that on 29 May 2018 the Claimant was registered as CF10 and CF11 at Alpha Trades. We concluded that, by inference, by about the end of May 2018, the Respondent must have known that the FCA had decided that the Claimant was a fit and proper person. After this time, the Respondent could not have had any justification for holding onto any data for FCA regulatory reasons.[410]In any event, given the issue for the FCA was whether the Claimant was a fit and proper person, this did not permit the Respondent to retain highly personal data about her family life and personal affairs at any stage. This should have been even clearer to the Respondent after the implementation of GDPR, which strengthened the protection of personal data.[411]A second reason raised by the Respondent in justification was the Employment Tribunal claim and other potential claims that it might bring against the Claimant.[412]The Tribunal concluded that the Employment Tribunal claim did mean that the Respondent had an obligation to retain certain relevant documents – such as those potentially relevant to the allegation that the Claimant was not a fit and proper person for the purpose of holding an FCA role (even though we found that the allegation that the Form A had been completely incorrectly lacked credibility).[413]In any event, this did not permit the Respondent from retaining highly personal data about her family life and personal affairs at any stage. This was not necessary under either the DPA 1988 nor under the GDPR.[414]Further, we reminded ourselves of the ICO Guidance on the GDPR set out above. This demonstrated that even the existence of Tribunal proceedings did not give the Respondent a blanket defence to the retention of the Claimant’s personal data.[415]By its solicitor’s letter to the ICO in “C1”, the Respondent alleged that there was an ongoing possibility that it would pursue a contractual claim against the Claimant. We found this to be a weak attempt to justify the Respondent’s actions in retaining the personal data of the Claimant. The Tribunal found that the Respondent had no basis in fact for any of these potential claims, for the reasons that we explain above in the findings of fact. For example, the Claimant was not responsible for MIFID implementation, because this was the responsibility of a project manager in a different team.[416]Moreover, in respect of the alleged right to enforce a restraint of trade covenant, there was nil prospect of such enforcement action being taken by the Respondent. This was because any such claim would inevitably fail because no injunction was necessary. The Claimant’s new employer was not a competitor; we accepted the Claimant’s evidence about this. In any event, the Respondent took no action against Ms. Patel, whose contract contained the same term, even though she did move to work for a competitor. Moreover, any Court would be unlikely to grant injunctive relief based on such a covenant unless the application was made promptly on evidence. We heard no evidence to justify the making of an injunction; and no such claim has been made in any event.[417]Further, given the manner in which this Claim has been anticipated and resisted (such as by the making of false allegations and certain aspects of the Respondent’s evidence being found to be untrue), we were satisfied that any credible claim that the Respondent had would have been issued some time ago.[418]In any event, the personal data dealing with the Claimant’s private life and family matters that has been withheld has no relevance to the alleged potential contractual or tortious claims. Accordingly, it is not necessary for the Respondent to retain this data.[419]The Respondent admitted the fact that the Claimant’s data was still held on a memory stick, held by its data protection officer. This was despite the fact that the Respondent had been told to delete all data relating to her family life by email from the ICO dated 30 January 2019 (confirmed by email to the Claimant on 26 February 2019).[420]Accordingly, the unjustified retention of sensitive data about the Claimant is continuing.[421]We have found that this detriment was caused by the protected disclosures and the allegation of sex discrimination within the grievance. Issue 7(15)(vi)[422]We have found that, on or about 15 December 2017, the Respondent did announce that the Claimant would be leaving the office. Bhav Patel made the announcement, having been told this by a more senior manager.[423]A reasonable worker would or might view this as a detriment, particularly because no notice of dismissal had been provided nor any justification for such action.[424]We concluded, however, that this treatment was not materially influenced by any of the protected disclosures made up to that time. Issue 7(15)(vii) and (ix)[425]We have found that there were no reasonable grounds for a belief, nor was any genuine belief held by the Respondent, that the Claimant was running an e-Bay account from her work computer.[426]Further, for the reasons set out at paragraphs 41-42, we concluded that the alleged illegal downloading of music files was an example of alleged misconduct by the Claimant for which the Respondent had neither evidential basis, nor any genuine belief.[427]A reasonable worker would find such unfounded allegations of misconduct to be a detriment.[428]We concluded that the substantial reason that these allegations were made was because the Claimant’s grievance contained each of the protected disclosures identified as contained within it.[429]We have addressed above the misrepresentation made to the FCA by the Respondent, which was clearly a detriment. Issue 7(15)(viii):[430]We found that Mr. Gee deliberately sent information in response to the Claimant’s Subject Access Request to her old email address, knowing full well that she could not access this. The ICO considered that in doing so, the Respondent had breached data protection law (by not having retained up to date contact details). Our findings of fact are at paragraph 204.[431]We concluded that a reasonable worker would or might view the sending of emails in response to an SAR to an email address that she could not access as a detriment, not least because the worker could not know whether any response at all had been made to the SAR and so could not know if her legal right to receive her data had been upheld.[432]We concluded that, because this was a failure to comply with data protection law, and given Mr. Gee knew that the Claimant could not receive the emails sent to her work email address, it must have been deliberate, designed to upset or annoy the Claimant. This treatment called for an explanation; and we rejected Mr. Gee’s evidence of innocent mistake as being implausible (given that he was the one who had ensured her email account had been disabled in December 2017). We inferred that, given our findings of fact, the Respondent had subjected the Claimant to this detriment substantially because of the protected disclosures within her grievance and also because of the complaints of sex discrimination within the grievance.[433]Moreover, we concluded that the Respondent had not complied with the statutory 40 day time-limit within the DPA 1988 in responding to the SAR. Issue 7(15)(x):[434]We found that the Respondent wrongly accused the Claimant of providing false or misleading information in her FCA Form A. We explain why in the findings of fact at paragraphs 17-23. (Although not relevant to this detriment, we found, also, that she did not include false or misleading information in her yearly attestations).[435]We concluded that a reasonable worker would consider the negative and unjustified interpretation put on the Form A document by Mr. Clowes, which had been signed off by the Compliance Director some four years earlier, as a detriment.[436]We concluded that this attack on the Claimant’s credibility was an attempt to damage her career prospects and earning capacity, and an attempt to prevent her pursuing legal action against the Respondent.[437]We looked for an explanation for this. We concluded that this treatment was substantially because of the protected disclosures within the Claimant’s grievance. We noted that, at the time that the disciplinary procedure letter is dated (15 December 2018), there is no mention of referring the Claimant to the FCA on the basis of these allegations, which suggested to us that this alleged concern about the Form A arose after the filing of the grievance and was caused by the protected disclosures within it. Issues 7(15)(xi)-(xii) and 8(i)-(ii)[438]We found that, by a solicitor’s letter of 13 April 2018, the Respondent did threaten legal action in the High Court for alleged breaches of contract, claiming an injunction and damages of over £384,000. Our relevant findings of fact are at paragraphs 216-218.[439]We concluded that a reasonable worker would consider receiving such a letter to be detrimental, both because of the sums claimed and the anxiety that it would cause.[440]We found that the Respondent knew that several of the key alleged facts in its solicitor’s letter were incorrect and it had no genuine belief that the Claimant was working for a competitor (We attach no blame to the solicitor for this, concluding that the firm was likely to have acted on instructions). This begged an explanation.[441]The Tribunal concluded that this solicitor’s letter, and the threat of an injunction application within it, was created substantially because the Claimant had made protected disclosures and complained of direct sex discrimination in her grievance. By sending this letter, the Respondent hoped to dissuade the Claimant from pursuing any legal claim against the Respondent, or to make it more difficult for her to do so.[442]Although the Claimant did make post-termination protected disclosures to the ICO on 8 and 13 April 2018, we concluded that these were not a cause of this detriment. Issues 10 - 15: Victimisation within section 27[443]As set out in our findings of fact at paragraphs 87, 97, and 108 above, we found that the Claimant did not do a protected act on 7 September, 26 October or 21 November 2017.[444]We concluded that the part of the grievance of 15 December 2017 set out at issue 4(3)(c) was a protected act. This is because it amounts to a complaint of direct sex discrimination, which comes within section 27(2)(d) EA 2010.[445]We concluded that this protected act was a further cause of the detriments that we found proved at issues 14(7)(iv), 14(7)(v), 14(7)(vii) – (xii).[446]We made a positive findings of fact that the Respondent was motivated to subject the Claimant to those detriments in part because of the complaints of direct sex discrimination within the grievance of 15 December 2017.[447]In the alternative, if it is alleged that we are wrong to make such findings, we concluded that the Claimant had shown facts from which she could succeed in proving discrimination by victimisation; the burden of proof had shifted; and the Respondent had failed to discharge the burden of proof within section 136 EA 2010.[448]In this case, there was a protected act followed by the detriments identified. Applying Madarassy, this is not sufficient to show that the Claimant could succeed in proving discrimination. In this case, however, we have found facts which point to a working environment in which, put simply, women were valued less than men, demonstrated by the advertisement for Aston Martin cars. As we have explained, there was good evidence that pointed to the culture of the Respondent as valuing women less than men.[449]Therefore, we concluded that these factors were the “something more” required for the burden of proof to shift onto the Respondent. Given that we had rejected the Respondent’s explanations for the detriments (such as the alleged reasons for retention of sensitive personal data), we concluded that the Respondent had failed to prove that the detriments at paragraph 447 above were not caused in any way by the protected act in the grievance.[450]The detriments listed at issues 14(1) - 14(6), 14(7)(i) to (iii), 14(7)(vi), and 14(9), were caused by the Respondent wanting to make life as difficult and as costly as possible for the Claimant after it had formed a belief that she was guilty of gross misconduct.[451]We found that the Claimant was not constructively dismissed because of the protected act of filing her grievance. The reasons for her constructive dismissal are set out in our conclusions under Issue 1 above. Issues 21-23: Remedy[452]The Claimant is entitled to declarations that she was unfairly dismissed and that she was subjected to post-termination detriments due to making protected disclosures.[453]Further, the Claimant is entitled to a declaration that she was victimised contrary to section 27 Equality Act 2010.[454]Given our findings of fact, and the conclusions set out above in respect of Issues 1 and 2, we concluded that the Claimant had not committed any misconduct which caused her dismissal.[455]Moreover, we concluded that it was 100% likely that a reasonable and fair investigation would have demonstrated that she was not guilty of any misconduct.[456]Accordingly, there can be no reduction to the Claimant’s compensation under either section 123(1) or section 123(6) ERA 1996.[457]The Respondent failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures in several ways. We consider that adequate reasons have been given already to explain this conclusion. For the avoidance of doubt:457.1 In breach of paragraph 2 and 18 of the Code, the disciplinary procedure used, such as it was, was not a fair one. The unfairness included that:457.1.1 The decision to dismiss had been pre-determined, evidenced by the announcement to other staff on 15 December 2017 and by the advertising of her post prior to the outcome of the disciplinary proceedings;457.1.2 The decision to charge the Claimant with the alleged false completion of the Form A was not based on a genuine belief that the Claimant had committed such misconduct.457.2 In breach of paragraph 5 of the Code, the Respondent failed to carry out any adequate or necessary investigation before jumping to the conclusion that the Claimant was guilty of gross misconduct.[458]Given our findings and conclusions, the Tribunal was in no doubt that there were multiple breaches of the Code, for which there was no mitigation. The appropriate uplift to the compensatory award for unfair dismissal was 25%.[459]The Tribunal has also considered section 12A Employment Tribunals Act 1996, and whether any penalty award should be made. In fairness to the parties, given that this is not in the List of Issues and given that this is a discretionary power, we concluded that this issue should be addressed at the remedies hearing.
Summary
[460]A provisional remedies hearing listed at 10am on 23 September 2019 will now proceed. Despite the many differences that the parties have had in respect of liability, we would now encourage them to work to narrow the issues on remedy, with a view to avoiding the time and costs that a remedies hearing will involve.[461]Case management directions will be made by the Tribunal of its own motion ahead of the remedies hearing. Employment Judge Ross Date: 5 September 2019 APPENDIX AGREED LIST OF ISSUES Constructive Unfair Dismissal/Automatic Unfair Dismissal (s.103A Employment Rights Act, 1996) 1. Did the Claimant resign and/or was she dismissed? In particular: Was there a breach of contract?[2]Was that breach of contract a fundamental breach of contract?[3]Did the Claimant waive the aforesaid breach of contract?[4]Did the Claimant resign as a consequence of the aforesaid fundamental breach of contract? 2. If the Claimant was dismissed was that dismissal unfair as defined in s.94 of the Employment Rights Act 1996 (“ERA, 1996”)? In particular what was the reason for the dismissal? 2.1. The Respondent’s position is that the Claimant was dismissed by reason of conduct. 2.2. Was the reason or the principal reason for C’s dismissal that C made protected disclosure(s)? 2.3. Was the dismissal discriminatory contrary to sections 13 and/or victimisation contrary to 27 of the Equality Act, 2010? 3. Was the dismissal reasonable pursuant to section 98(4) ERA, 1996? Protected Disclosures 4. Did C make the following disclosures whilst in the Respondent’s employment?
Introduction
[1]The Claimant informed the Director of Compliance about Alex Pusco’s ‘confidential’ request to open a real money trading account in his personal name in June 2017 against the Personal Account Dealing Policy (para 27 of the Claimant’s witness statement);[2]The Claimant was asked to disclose SAR information to the Head of Sales, Finance Director and Chief Executive Officer and the Claimant informed the Director of Compliance that this was an unacceptable and potentially criminal situation to put her in on as follows: a) To the Director of Compliance after a meeting on 7 September 2017 (para 43 of Claimant’s witness statement); b) To the Director of Compliance on 21 November 2017; c) To the Director of Compliance the week commencing 11 December 2017; d) In her grievance dated 15 December 2017 as follows (at [556-7]): “Such requests are not only against the regulations and internal policies but are also in breach of Section 333 of POCA 2002 which clearly defines the offence of tipping off. I have never personally disclosed any information requested; however, feel immense pressure on my team and me not to submit the reports when these are needed. I remind you that should the suspicious report not be made when needed the person in question will be committing an offence of Failure to Disclose under section 331 of POCA 2002”.[3]The Claimant’s concerns and grievance in relation to treatment of the female staff as follows: a) On 7 September 2017 the Claimant informed the Director of Compliance that if she had been a male MLRO she would not have been forced to disclose the SAR information; b) On 26 October 2017 the Claimant informed the Director of Compliance that she was shouted at by Andrea Draghi in a meeting and she would not have been if she was a male; c) On 15 December 2017 in her grievance the Claimant stated: “Lastly, numerous times many colleagues of mine and I were witnesses to discrimination towards women. It was mentioned that 'women should stay at home and cook' and that women should not be recruited as they fall pregnant. One of the directors even said that 'women are meat' whilst drunk at a Christmas party. I am the only female senior manager in the company since the company was formed. Any initiatives from the women in the office are dismissed and the same goes for the initiative Women in Finance. A lot of the times the work load for some of my subordinates is decided without my input whatsoever and more importantly the employee in question is then asked to keep the request confidential. I am therefore sure that the way I am treated now and disrespect of my decisions as an MLRO and as a manager is based on the fact that I am a woman.”[4]The Claimant’s grievance, in relation to not being able to convert her sickness absence to holiday and the Respondent allegedly contacting her GP without her permission as follows: “I have repeatedly requested to have my absence recorded as annual leave which is my legal right, in order not to be anxious about being paid SSP and my requests were rejected, which is only adding to my stress levels. I was told to get another sickness certificate. I had to go and see the doctor again and was signed off for another 2.5 weeks now as am feeling worse. It would appear that the Firm is deliberately putting me under pressure with, I suspect, the objective of forcing me to leave as I am resisting the breach of policies and laws”.[5]Did C make the following post-termination disclosures as follows: 1) to the FCA on 19 January 2018 (para 55.1 of the ET1) in which the Claimant attached her grievance of 15 December 2017 in which she made a set of disclosures on MIFI, SAR Regime on POCA and Discrimination [840-842 and 846]; 2) to the Information Commissioner’s Office on 6 February 2018 (the email is at [1104] read with the form at [1561]) as follows: “My employer, ActivTrades PLC, registration number Z9210067, accessed my password protected work PC and a folder marked personal whilst I am on sickness leave due to the Company inflicted stress and anxiety. The Company and its employees and/or agents have opened the folder marked personal and read through documents concerning and detailing the domestic abuse I suffered, my divorce proceedings, correspondence with my then solicitor, my mental health, communications with the police concerning criminal conduct of my ex-husband, matters relating to my son (minor), my bank statements, credit cards statements, mortgage information, ID documents for my family, photographs, and many other documents. Some of the documents were copied and forwarded to third parties including but not limited to Prettys Solicitors LLP. The Company acted in revenge due to protected disclosure submitted by me internally and this act is one of many in the series of the case of discrimination, victimisation and harassment. This caused immense issues with my health”. 3) through her solicitor and herself to the Respondent’s solicitor, Respondent and the ICO? 1) Respondent’s noncompliance with the Subject Access Request reported to the ICO on 8 April 2018: “The Firm also failed to meet the deadline of the SAR. To date I have no communication on the matter whatsoever.” 13.04.2018 Claimant disclosed the below to the ICO (disclosed by C, not in the bundle): “Unfortunately, the only conclusion drawn from this is the same as what I attempted to deliver to the attention of the ICO in all my correspondence. The Firm is acting with no integrity and, as far as I am concerned, is committing serious offences. The named individuals knowingly and deliberately send the emails to the wrong email address and are in breach of the DPA 1998 again.” Reported by Claimant to the Respondent 8 April 2018: “I do not have any of the above including any response to number 2 and 3. I require the data asap for further legal action. The Firm again is in breach of the DPA 1998 which sets the deadline of 40 days for the response to SAR an I informed the Firm of the deadline.” [R notes that this is not specifically pleaded in the Particulars of Claim]. 2) Retention of the Claimant’s highly sensitive data by the Respondent in breach of the DPA 1998 and/or GDPR reported by C’s solicitor to R’s solicitor 2 February 2018 (page 1020 and 1014): “Furthermore the Company and/or its employees and/or its agents has/have, inter alia, committed very serious breaches of the Data Protection Act 1998, the terms of our Client’s (implied and express) contract of employment and the ACAS Code of Conduct. The conduct shall be reported to the Information Commissioner, the Financial Conduct Authority and shall form part of our Client’s clam to the Employment Tribunal.”[6]Did each disclosure alleged to have been made by C: 1) convey information; 2) tend to show one or more of the matters within section 43B(1)(a) – (f) of the ERA. 3) was in the ‘public interest’; 4) were such that C held a reasonable belief in the subject matter of the protected disclosures? Detriments under s.43B of ERA, 1996[7]Did the Respondent subject the Claimant to the following detriments contrary to section 43B of the ERA as follows?[1]The Claimant’s treatment at a meeting on 26 October 2017 by Andrea Draghi;[2]The Claimant’s treatment at AML/TCF meeting 13th October 2017; [R’s position is that this is not pleaded];[3]Accusing the Claimant of non existent wrong doing in relation to MiFIR reporting around October 2017;[4]In or around August to December 2017 questioning the Claimant and/or her team on the SAR(s) and/or requiring the disclosure of external Suspicious Activity Report information to the unrelated staff [R’s position is that this was to the Head of Sales, Finance Director and CEO and not unrelated staff]?[5]By the CEO instructing the Claimant’s team to run SAR reports by him and not the Deputy MLRO during the week commencing 11 December 2011R’s position is that this was when C was off sick yet (the Claimant asserts) contactable.[6]Restricting C’s access to work emails in (the Claimant asserts) early December 2017 (R’s position is that it did not restrict the Claimant’s access until 15th December).[7]Failing to provide documents the C had requested as part of the disciplinary process despite requests for such.[8]Allowing access to the information within the C’s legal remit of the FCA Controlled function to another individual and without the C’s knowledge.[9]Failing to thoroughly investigate the Grievance and Protected disclosures[10]Refusing to delay the Claimant’s disciplinary process and grievance investigation process despite the Claimant’s ill health?[11]Initiating a recruitment process for a replacement for the Claimant prior to Claimant’s acceptance of the (alleged) repudiatory breach [R’s position is that this should be prior to the resignation]? By paying SSP yet claiming suspension.[13]Not allowing the Claimant to have annual leave booked instead of sickness; Misinforming the FCA in the Form C?[15]Subjecting the Claimant to negative and harassing treatment as follows: i) Not allowing the Claimant to have annual leave booked instead of sickness; ii) Claiming that the Claimant was suspended yet paying SSP; iii) Breaching the Claimant’s data protection rights and privacy rights by making contact with the Claimant’s GP; iv) Misusing highly sensitive personal data and confidential information including accessing her personal data on the Respondent’s computer; v) Refusing to delete C’s highly sensitive personal records; vi) Announcing the Claimant’s permanent departure from the office on the vii) Accusing the Claimant of non-existent wrongdoing such as ‘running an Ebay account’ and downloading malicious files; viii) Mishandling the C’s Subject Access Request; ix) Misleading the FCA about the Claimant’s absence from work and/or accusing the Claimant of non-existent wrongdoing; x) Accusing the Claimant of providing misleading or false information in her FCA Form A. xi) By threatening legal action against the Claimant in High Court for breaches of contract requesting a payment of over 384,000 thousand pounds; xii) By threatening injunction action against the Claimant in High Court for starting employment with a competitor Firm; 8. Did the Respondent subject the Claimant to the following post-termination detriments contrary to section 43B of the ERA as follows? 1) By issuing threats to the Claimant as set out below: i) Threatening legal action against the Claimant in High Court for breaches of contract requesting a payment of over £384,000; ii) Threatening injunction action against the Claimant in High Court for starting employment with a competitor Firm; (at paragraph 56.1 of the Particulars of Claim)? 2) By misleading the FCA regarding the Claimant’s suspension? 3) By failing to comply with the Data Protection Act, 1998 and General Data Protection Regulation in relation to deletion of Claimant’s highly sensitive personal data? 9. Was the reason that C was subjected to the above detriments materially influenced by the fact that C had made protected disclosures? Victimisation contrary to section 27 of the Equality Act, 2010 10. Did the Claimant do a protected act by way of her grievance dated 7th September 2017 by stating to the Director of Compliance orally after the meeting that if she was a male MLRO she would not have been treated this way? [R’s position is that this is not pleaded] 11. Did the Claimant do a protected act by way of her grievance dated 26th October 2017 by informing the Director of Compliance orally that she was only being treated this way because she was female? 12. Did the Claimant do a protected act by way of her grievance dated 21st November 2017 by raising with the Director of Compliance that she was only being questioned because she was a female MLRO? 13. Did the Claimant do a protected act by way of her grievance dated 15 December 2017 as set out at paragraph 4(c) above? 14. Did the Respondent subject the Claimant to the following detriments as follows: 1) Initiating a disciplinary procedure; 2) Refusing to delay the Claimant’s disciplinary despite the Claimant’s ill health. 3) Initiating a recruitment process for a replacement for the Claimant. 4) Failing to provide documents the C had requested as part of the disciplinary process despite requests for such. 5) Allowing access to the information within the C’s legal remit of the FCA Controlled function to another individual and without the C’s knowledge. 6) Restricting C’s access to work emails from the beginning of December 2017. 7) Subjecting the Claimant to negative and harassing treatment as follows: i) Not allowing the Claimant to have annual leave booked instead of sickness; ii) Claiming that the Claimant was suspended yet paying SSP; iii) Breaching the Claimant’s data protection rights and privacy rights by making contact with the Claimant’s GP; iv) Misusing highly sensitive personal data and confidential information including accessing her personal data on the Respondent’s computer; v) Refusing to delete C’s highly sensitive personal records; vi) Announcing the Claimant’s permanent departure from the office on the vii) Accusing the Claimant of non-existent wrongdoing such as ‘running an Ebay account’ and downloading malicious files; viii) Mishandling the C’s Subject Access Request; ix) Misleading the FCA about the Claimant’s absence from work and/or accusing the Claimant of non-existent wrongdoing; x) Accusing the Claimant of providing misleading or false information in her FCA Form A. xi) By threatening legal action against the Claimant in High Court for breaches of contract requesting a payment of over 384,000 thousand pounds; xii) By threatening injunction action against the Claimant in High Court for starting employment with a competitor Firm; 8) Dismissing the Claimant. 9) Announcing the Claimant’s permanent departure from the office on the 15th December 2017. 15. If so, were the above detriments carried out because the Claimant did a protected act(s)? Direct Discrimination on grounds of sex[16]Was the Claimant subjected to less favourable treatment on the grounds of her sex contrary to s.13 of the Equality Act 2010 as follows: 1) The Claimant’s treatment at a meeting on 26 October 2017 by Andrea Draghi; 2) Accusing the Claimant of non-existent wrongdoing in and around October 2017 in relation to MiFIR? 3) In or around August to December 2017 requiring the disclosure of external SAR information to the Head of Sales, Finance Director and the CEO? 4) By the CEO instructing her team to run SAR reports by him rather than the Deputy MLRO during the week commencing 11 December 2017. [R’s position is that this was when C was off sick] 5) During a visit to Bulgarian Branch Mr Alex Pusco said that “women should stay at home and cook” [2014]. 6) During a Christmas Party in December 2013 in Bulgaria Mr Andrea Draghi said that “women are meat”. 7) In Autumn 2017 displaying a sexualised image of a woman to indicate what the marketing of the Respondent should learn from as ‘sex sells’. 8) Dismissing initiatives from women in the office and Women in Finance and/or using the initiative for marketing purpose; 9) Failing to involve the Claimant into the decisions on allocation of duties to her staff by deciding on direct report staff work load and tasks. 10) Claiming that the Claimant was suspended yet paying SSP; 11) Dismissing the Claimant.[17]Who is the appropriate comparator relied on by C, if any? Jurisdiction Are any of C’s detriment claims out of time?[19]If so are they capable of being part of a series of continuing acts? If not, should time be extended? Remedy[21]If successful what remedy is the Claimant entitled to?[22]Should any award be reduced on the basis that the Claimant contributed to her dismissal and/or she would have been dismissed in any event according to the principles set out in Polkey?[23]Did the Respondent fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures as follows? 1) Announcing the Claimant’s departure on the 15th December 2017? 2) Advertising the Claimant’s position prior to the outcome of the Disciplinary process? 3) Failing to provide evidence of the disciplinary allegations requested by the Claimant? 4) The appointment of the grievance investigator? 4) Refusing to delay the disciplinary and/or grievance processes? REMEDY JUDGMENT The judgment of the Tribunal is that:- 1. The Respondent shall pay the Claimant £76,510.16 assessed as follows: 1.1. Award for unfair dismissal: 1.1.1. Basic award: £2,934 1.1.2. Compensatory award: £5,421.05 1.1.3. Statutory uplift on the compensatory award 25%: £1,355.26. 1.2. Injury to feelings (including aggravated damages): £40,000 1.3. Statutory uplift of 20%: £8,000 1.4. General damages for personal injury: £7,500 1.5. Statutory uplift of 20%: £1,500 1.6. Interest to 22 May 2020: £9,799.85 2. There is no recoupment sum. 3. The Respondent shall pay £5,000 to the Secretary of State for Business, Energy and Industrial Strategy under section 12A Employment Tribunals Act 1996.[1]The Reserved Judgment and Reasons on liability were promulgated on 10 September 2019.[2]On 5 September 2019, a case management order was made by the Tribunal on its own initiative, because the remedy hearing was listed for 23 September 2019.[3]In the event, the original remedy hearing was converted into a Preliminary Hearing and case management directions were given, including for the instruction of a single joint expert on the issue of stigma loss, with the issues for the expert to address being outlined. The remedy hearing was re-listed for a more realistic time estimate of 2 days.[4]In January 2020, an expert’s report was obtained by the parties from Stuart Baxter. This report and his replies to questions posed by the parties are considered in more detail below.[5]The Claimant’s application to call the joint expert to give oral evidence was refused, for reasons given at the time.[6]On 20 February 2020, the Claimant made an application for costs, which she supported by the production of invoices from solicitors who had advised her from time to time during the litigation.[7]The remedy hearing was heard in Tribunal on 4 and 5 March 2020, and the parties made submissions on costs at the end of this hearing. The Tribunal then met by telephone, in chambers, on 20 April 2020, in order to reach its conclusions. In the course of reading for that Chambers day, the Tribunal noted that it had not given its conclusions on whether the uplift under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 should apply to the basic award for unfair dismissal or the awards for the victimisation found proved under section 27 Equality Act 2010 (“EQA”) and section 47B Employment Rights Act 1996 (“ERA”). The parties were invited by letter to make written submissions on those issues, if so advised. The Respondent sought an extension of time to respond, which was granted to 15 May 2020.[8]In addition, having re-read the letter to the parties, the Tribunal noted that the letter did not refer to submissions being required in respect of whether the uplift should be applied to the basic award. This omission was rectified in subsequent letter granting the extension of time sought.[9]Written submissions were provided by the Respondent on 15 May 2020. The Claimant provided no further submissions. The Respondent’s submissions were sent to the members of the Tribunal.[10]The Tribunal then met by telephone, in chambers, on 22 May 2020, in order to address the outstanding issues relating to the statutory uplift, to consider the matters raised in the parties’ submissions (including the Respondent’s further written submission) and to reach its conclusions. Reconsideration of the liability judgment[11]The Respondent submitted (paragraphs 2-10 of its further written submissions) that the Tribunal was seeking to re-open its judgment on liability.[12]The Tribunal accepted that it was proposing to reconsider its Judgment on liability under rule 73 of the 2013 Rules of Procedure. However, although recognising the fundamental importance of the need for finality in litigation, the Tribunal did not agree with the Respondent’s analysis. In its original deliberation of the question of whether a statutory uplift should be applied, the Tribunal omitted to provide conclusions on whether the award made for victimisation and public interest detriment should be uplifted for failure to comply with the Code in respect of the Claimant’s grievance of December 2015. We concluded that there was clear evidence that this was an accidental omission, because of at least the following: 12.1. The fact that the Tribunal had concluded (at paragraph 457 Liability Judgment) that there were multiple breaches of the Code. 12.2. The Claimant had alleged that there were breaches of both parts of the Code - that is, the parts applicable to disciplinary and grievance procedures – but conclusions on the statutory uplift were only given in respect of the breach of the part of the Code addressing disciplinary procedure. 12.3. The Claimant claimed the statutory uplift in respect of each head of award (ie. including the basic award and including compensation for the detriments found proved).[13]The Tribunal directed itself to the terms of Rule 73 and considered the judgment in Qu v Landis & Gyr Limited UKEAT/0016/19.[14]The Tribunal decided that it would be in the interests of justice to exercise its discretion to reconsider its Liability Judgment on the facts in this case, limited to the omission to consider whether to order any uplift to the awards made arising out of the successful complaints of detriment. We have concluded that it would not be a misuse of our power to reconsider the Judgment in this way.[15]We accepted that the discretion under rule 73 should not be exercised too readily; but, we asked ourselves whether the interests of justice could be served by not making good this omission. We found that justice required that the issues between the parties should be determined, and that adequate reasons are given in respect of those issues, so that the parties could know why they won or lost on particular points.[16]On the question of finality of justice, the Tribunal recognised that the discretionary power to hold a reconsideration is not open-ended; but we have exercised this power before giving our Judgment on remedy and without any real delay (given that the first chambers day after the remedy hearing was on 16 April 2020). In contrast, for example, in Qu, the Tribunal had originally made no uplift when giving its remedy Judgment, only to subsequently reconsider its judgment.[17]The Tribunal also considered that it was in the interests of justice for the reconsideration to proceed without a hearing. The Claimant had not filed any submissions or objections in response to the letter of 23 April 2020. Moreover: 17.1. any hearing would delay resolution of our decision on remedy; and 17.2. any such delay was unnecessary because the Claimant had submitted her claim for the statutory uplift at the remedy hearing and it featured in her revised Schedule of Loss; 17.3. the Claimant would not oppose reconsideration, given that our omission would, unless addressed, have the effect of preventing any further uplift to the amount of compensation awarded; 17.4. the Respondent agreed that the Tribunal could deal with any reconsideration without a further hearing.[18]However, the Tribunal concluded that it was not in the interests of justice to reconsider the failure to deal with the application for an uplift to the basic award. There are two reasons for this: 18.1. At paragraph 458 of the Judgment and Reasons on liability, the Tribunal noted that we stated that the “appropriate uplift to the compensatory award for unfair dismissal was 25%”. The Tribunal had, therefore, considered what uplift to award in the context of unfair dismissal before this Judgment was promulgated, but failed to state our reasons for not providing an uplift to the basic award. 18.2. Section 124A(a) ERA provides that an uplift for unreasonable failure to comply with the Code may only be applied to the compensatory award. Therefore, the statutory uplift cannot, as a matter of law, apply to the basic award. The issues[19]At the Preliminary Hearing on 23 September 2020, the Respondent agreed the following figures in the Claimant’s revised Schedule of Loss: 19.1. Basic award: £2934; 19.2. Part of the Compensatory award for unfair dismissal, namely Loss of earnings (including pension contributions and 25% uplift) up to the date of the Claimant commencing new employment on 26 February 2019: £5,213.81 (£4,171.05 plus 25%).[20]By 5 March 2020, the parties had also agreed that the Respondent would pay a total of £750 in respect of the various expenses set out in section 5 of the revised Schedule of Loss.[21]The remaining issues (set out in more detail in the Case Management Summary prepared following the hearing on 23 September 2019) were as follows: 21.1. In respect of compensation for unfair dismissal, what award for loss of statutory rights should be made? In respect of compensation for the victimisation proved under both section 27 EQA and section 47B ERA: 21.2. What award for injury to feelings should be made? 21.3. What if any award of aggravated damages should be made? 21.4. What if any stigma damages should be awarded? 21.5. What if any award for personal injury should be made? 21.6. Whether it was just and equitable to apply an uplift to the awards for the successful victimisation complaints under section 47B ERA and section 27 EQA for an unreasonable failure to comply with the ACAS Code under Section 207A Trade Union and Labour Relations Consolidation Act 1992; and if so, what uplift should be applied? Under section 12A Employment Tribunals Act 1996: 21.7. Whether there were any aggravating features to the breaches of the Claimant’s employment rights found proved; and, if so, 21.8. Whether the Tribunal should impose a financial penalty and in what sum.[22]The parties also agreed that the Tribunal should hear the application for costs at the remedy hearing, and reach a determination on that application, with both judgments being provided at the same time if possible. The Evidence[23]The Respondent had produced a bundle for the remedy hearing. This included all relevant documents. Late additions were made to it by the Respondent, and so it was not agreed in its entirety. However, the bundle was a tool for the Tribunal; and page references in this set of Reasons refer to pages in that bundle. At the Tribunal’s request, the Respondent produced “R1”, the letter of instruction to the single joint expert.[24]The Claimant filed and served a witness statement [p147-170], which we pre-read along with documents referred to in her evidence. The Claimant gave evidence and was cross-examined.[25]The Tribunal read an affidavit from Mr. Friend. We attached such weight to that as we saw fit, which was limited given the absence of cross-examination.[26]The Respondent called no live evidence, but relied upon the documentary evidence and submissions on the evidence and the law.[27]The Tribunal also pre-read the single joint expert evidence, the letter of instruction (“R1”) and the questions posed to the expert together with his replies. Expert Evidence[28]It was not alleged by the Respondent that Mr. Baxter was not an expert. He had been selected by the Claimant from a list provided by the Respondents.[29]In summary, the expert report concluded: 29.1. The Claimant had suffered loss of career prospects: it was “extremely unlikely that C will become the preferred candidate after taking into account the stigma resulting from her Employment Tribunal claim…her future career prospects have been significantly disadvantaged”. 29.2. In respect of quantification of loss of career prospects, Mr. Baxter’s opinion was that it was the difference in total annual remuneration when comparing the Claimant’s current role against that of a senior Compliance role, which is estimated to be either: £29,000 pa; or £65,250 pa £101,500 pa Mr. Baxter based his assessment of the value of the Claimant’s career loss on a 15 year period, using the above figures as multiplicands.[30]In response to questions posed by the Respondent, the expert evidence included: 30.1. The Claimant could have sought more senior position within Financial Services Industry during the next 12-24 months; 30.2. The Claimant had a 50-60% chance of moving to top tier FCA regulated firm without any stigma (over next 12-24 months); 30.3. There was no prospect (ever) of the Claimant removing stigma arising from an Employment Tribunal Claim. 30.4. Stigma will not vary between FCA Regulated firms including Investment Banking and CFD businesses (Contract For Difference businesses, like the Respondent), or between lower/middle and top tier firms. 30.5. The stigma is worse if a claimant is unsuccessful in a Tribunal Claim. 30.6. Stigma does not decrease either over time or as result of having other jobs post litigation. Stigma does not cease to have a material impact unless you leave the Financial Services industry. 30.7. The Claimant was extremely unlikely to be the preferred candidate even if individual institutions will ultimately take its own decision whether to recruit or not. 30.8. The Claimant’s % chance of appointment with the Tribunal decision is 0- 5%. 30.9. There was specific disadvantage: it was virtually impossible for the Claimant to progress her career both within the CFD industry or within a lower/middle or top tier Investment bank for the remainder of her career. 30.10. Her FCA registration was irrelevant. This was taken for granted as being held by applicants; the decision to recruit was not based on FCA registration. In response to questions from the Claimant, the evidence included: 30.11. The Employment Tribunal litigation means that the Claimant no longer has an exemplary background. 30.12. The Claimant will face identical difficulties with regard to any job applications made in the Financial Services Industry. 30.13. In the event of redundancy, the Claimant will be without employment for some time, unless the Claimant has a career change away from FCA regulated businesses. 30.14. It was extremely rare to change such jobs and not get a salary increase.[31]The Respondent opposed the application made on paper in advance of the hearing for Mr. Baxter to give oral evidence. The application was refused. Additional findings of fact[32]The Claimant was not cross-examined at all on her evidence about the injury to her feelings nor about her personal injury. We accepted the Claimant’s evidence about these matters; it was not questioned and we found no reason to doubt it, not least because we found her evidence to be credible in this respect.[33]We reminded ourselves, however, that the Respondent was only liable for damage caused by those acts which were found to be statutory torts of victimisation under section 27 EQA or detriments under section 47B ERA 1996. The first such act could not have begun before 15 December 2017 (the date of the grievance which the Tribunal concluded was not properly investigated). Furthermore, we noted that the unfair dismissal was not an act of sex discrimination or public interest disclosure detriment; injury to feelings stemming from that dismissal itself were not relevant. We noted, also, that the complaints of direct discrimination did not succeed, which meant that any injury to feelings arising from the Claimant’s beliefs about direct sex discrimination could not be relevant.[34]In addition, the Tribunal recognised that it had the task of distinguishing the evidence of injury to feelings from that relating to personal injury. This was a task which required some forensic consideration of the Claimant’s evidence, which we carried out.[35]Having taken into account the above points, the Tribunal found as follows in respect of the Claimant’s injury to feelings from the complaints found proved under section 27 EQA and section 47B ERA: 35.1. The Claimant had suffered great exacerbation of her stress and anxiety from 15 December 2017 onwards due to the acts of the Respondent (other than those relating to dismissal). This led to her belief that she would never fully recover from the acts of the Respondent. This caused her substantial loss of confidence and fear for the consequences of what the Respondent had done. 35.2. The Claimant had suffered a high degree of injury to her feelings by the perceived damage to her public image, because employees at the Respondent would have known of the allegations made against her. The Claimant knew that the Respondent was spreading rumours about her and tarnishing her reputation. In addition, the Claimant learned that the FCA were informed that she had been suspended, when this was not the case. The Claimant explained in her witness statement (paragraph 65) that she would have to disclose to the FCA on any future Form A that allegations had been made against her, even if they were false, and that High Court litigation for an alleged debt had been threatened, even if there was no basis to the Claim. These all added to the injury to her feelings. 35.3. The Claimant was extremely distressed by the attempt to damage her professional standing and her ability to practice as an FCA approved Compliance Head. This included the very serious charge that she had misled the FCA by false completion of a Form A. 35.4. The Claimant was greatly upset by the allegations that she was guilty of criminal acts, which she knew were simply untrue. 35.5. The Claimant suffered great distress because she feared that she would not be able to get another job due to the unlawful acts of the Respondent. Her earnings were the only source of income for herself and her son. 35.6. The Respondent’s failure to comply with its legal obligations under the Data Protection Act had a profound and enduring effect. This caused severe injury to her feelings because of the nature of the sensitive personal material retained, which included details of an assault by her former partner. 35.7. Moreover, the Claimant realised that the Respondent was retaining the sensitive personal data in order to hurt her; despite the Employment Judge at a Preliminary Hearing questioning how this data could be retained, the Respondent refused to return it or destroy it. This continued despite the Regulator warning the Respondent that its actions were likely to be unlawful, and then finding that they were unlawful. 35.8. The grievance investigation report caused immense upset to the Claimant, producing unfounded criticism and allegations against her. She felt this was a further personal attack on her. 35.9. The Claimant was put in fear by the threat to bring High Court proceedings. This undermined further what limited sense of security remained, because she feared losing her home and her financial security. 35.10. The effects of what the Respondent did were so severe that it caused the Claimant to feel a sense of powerlessness and to doubt her abilities. 35.11. Moreover, a key effect of the treatment of the Respondent left the Claimant feeling paranoid and distressed about what would happen in the future. She believed that the Respondent was waging a campaign against her. 35.12. The Claimant felt further undermined by the Respondent’s conduct within these proceedings. Her belief in a campaign against her was confirmed by the false evidence heard from former colleagues. 35.13. The degree of stress and anxiety caused by the Respondent’s treatment, apart from causing the personal injury explained in her evidence, led to the Claimant suffering manifestations such as interference in sleep and an inability to enjoy family life.[36]In summary, the Tribunal found that the treatment by the Respondent had caused a very high level of injury to her feelings which had been sustained over a long period time, by concerted and malicious action. The injury to the Claimant’s feelings had had a profound effect on almost every aspect of her life, which, from her oral evidence and the manner in which it was given (with a mixture of emotional upset and anger, which made it no less credible), the Tribunal found had continued up to the remedy hearing.[37]We found that the injury to her feelings was likely to continue for the long-term, whether or not there was any stigma loss and beyond when she recovered from her personal injury. The Respondent’s continued actions after she left employment were largely to blame. Personal injury[38]In terms of personal injury, there was no challenge to paragraphs 28, 29, 35, 41 or 42 of the Claimant’s witness statement. The Respondent focussed its case on challenging causation of the psychiatric injury of depression and anxiety alleged and the medical evidence, which was alleged to be “very limited” (see paragraph 26 Respondent’s submissions).[39]Although there was no expert medical evidence, the Tribunal did not find that the medical evidence was unduly limited; indeed, this was a submission inconsistent with part of the Respondent’s case, which relied on the GP records. We did not accept that earlier medical records were relevant; there was never any suggestion made of the Claimant during her evidence, or any documentary evidence which suggested, that she had had previous depression or anxiety, prior to November 2017. The Claimant’s oral evidence, which we accepted, was that she had had no previous psychiatric injury and nor had she been prescribed in the past the anti-depressant medication that she had been prescribed from late 2017.[40]The Tribunal considered the medical evidence, particularly the GP records. The Tribunal found that the unlawful treatment of the Claimant was not the cause of the Claimant’s depression and anxiety impairments. The Claimant had been suffering symptoms consistent with that psychiatric injury which existed prior to the unlawful treatment. For example, on 21 November 2017, the Claimant had had a panic attack (pp108-109) and the Claimant was signed off sick by her GP from 27 November 2017 (p184) with anxiety and stress. Moreover, before the unlawful treatment, the Claimant was on anti-depressants.[41]However, the Tribunal found that the Claimant’s symptoms were exacerbated by the unlawful treatment by the Respondent. The GP records, particularly from December 2017 to February 2018 led to the inference that her condition was getting significantly worse: see p.214-215. In particular, relying on the GP records and the unchallenged evidence of the Claimant on this issue, we found that the Claimant had an anxiety disorder, the symptoms of which increased in severity.[42]For example, on 31 January 2018, the GP notes recorded evidence from an interview with the Claimant, in which she explained that she could not cope, she was suffering work-related bullying and victimisation, and that she had recurrent panic attacks. The Claimant was started on diazepam. On the following day, 1 February, the Claimant was invited to Panic Management Therapy: see p204, 206, 208-209.[43]Further acts by the Respondent, such as the failure to address her grievance properly, the victimisation by making false allegation to the FCA against her, and the threat of High Court proceedings against her, prevented her recovering and caused her condition to deteriorate: see paragraphs 42-43 Claimant’s witness statement.[44]As the GP letter headed “To whom it may concern” states (p203), when the Claimant was referred for counselling, her assessment placed her in the severe category for anxiety and depression and she received cognitive behavioural therapy. She was referred to a psychiatrist, prescribed sleeping tablets and a higher dose of antidepressants.[45]The Claimant began further “stage 3” therapy in June 2018, which was completed on 7 November 2018 (see p.206 Care Pathway History).[46]Having assessed all the evidence, the Tribunal found that the Claimant’s symptoms remained more severe for several months.[47]The Claimant appeared to turn a corner, with an improvement in her condition, by about November 2018. There are various pieces of evidence which indicate this including: 47.1. It is apparent from the Counsellor’s assessment that the Claimant’s symptoms of anxiety and depression had reduced significantly by 7 November 2018: see p204 (the small table shows that the measurement for generalised anxiety has fallen from 18 to 7 from since 11 June 2018). 47.2. In the Clinical Notes at p.208, from the session on 7 November 2018, the Claimant is recorded as stating that she is managing her anxiety better, and has been able to manage her emotions. 47.3. The Claimant is not taking diazepam daily as well as citalopram by midlate in 2018; she asks for diazepam only when particular stressors arise, such as asking her GP just for a few diazepam tablets ahead of the Preliminary Hearing early in 2019.[48]The Tribunal found that the Claimant’s symptoms attributable to the unlawful treatment had improved by the date of the liability hearing. For example, in September 2019, the Claimant went back onto her law degree course (which she had had to defer) and she was fit to work in her new job, with no evidence of any impairment to her work. But the symptoms attributable to the unlawful treatment had not resolved by the date of the liability hearing, largely because the Respondent had continued to fail to comply with the requirements of data protection law and persisted in an untrue narrative.[49]The symptoms attributable to the unlawful treatment had not completely resolved by this remedy hearing; for example, her sleep was still disturbed. But the Tribunal found that there had been a marked improvement in those symptoms, largely because of the findings and conclusions in our Reserved Judgment on liability.[50]From the Tribunal’s assessment of the available evidence, we found that the prognosis for the Claimant was good in respect of full recovery from the symptoms attributable to the unlawful treatment. The Claimant’s anxiety and other symptoms were caused by her experiences during her employment and were linked to that; this is supported by the clinical notes prepared by her counsellor, which explain this: see p.209. As explained in her remedy witness statement (such as at paragraph 1), giving evidence had caused her to relive painful experiences.[51]However, having seen the Claimant give evidence (twice) and present her case at trial with great determination (despite the emotional challenge this posed for her), the Tribunal found that, on balance, she would make a full recovery from the exacerbation of her symptoms caused by the Respondent’s victimisation once this case is at an end. This is supported by the clinical notes (at p209), which record her statement that she is usually robust and able to cope with stress, our own assessment of her strengths, and the evidence that she gave that she had new employment and had returned to her law degree course. Findings of fact in respect of alleged Stigma loss[52]The bulk of the cross-examination of the Claimant was directed to the issue of whether the Claimant had suffered any stigma loss.[53]The Claimant commenced new employment on 26 February 2020 in a Compliance Director position, and holds SMF16 and SMF17 roles. We will refer to this new employer company as “X”. The Claimant’s total remuneration package in the new role is set out at p.339. Her basic salary is £130,000 per annum, with benefits, taking the total to £158,000. In addition, her bonus may be up to 50% of the basic; but the Claimant stated that the financial position of X meant that it was unlikely that she would receive any bonus this year.[54]It had taken the Claimant a short period of weeks to secure this position, which she did before presenting her ET1 Claim. Her employment consultant explained that, on or around 8 February 2018, X had reacted very positively to the Claimant’s CV: see email p.343.[55]Company X was part of a group of companies subsequently purchased by another group of companies, which we will refer to as “Y”. When the Claimant joined X, it was in the process of being purchased by Y. The purchase was not completed until 31 December 2019.[56]The Claimant’s case was that she would be made redundant in the next 3 to 6 months, because of this takeover. The reasons were that the financial position of X was poor, Y already has a Chief Compliance Officer and a Compliance Officer, the 2019 Financial Statement showed that the sub-division in which the Claimant worked was not doing well, and that this part was to be subject to review and potential restructure (evidenced by p270), and the speech from the CEO of Y demonstrated that the Claimant’s company was not doing well and subject to restructuring. Although the Claimant stated her belief, which was genuinely held, that she was likely to be made redundant, the Tribunal found that it was not satisfied that the evidence substantiated that belief. We found that there was a fairly low risk that the Claimant would be made redundant for the following reasons: 56.1. The Tribunal took account of the documents relied upon by the Claimant. These did not refer to restructuring of the Compliance function of X nor of X in particular; X was only one business within a group of assets purchased by Y. After acquisition, X was only one part of a series of businesses (the businesses are listed at p240, bottom paragraph). 56.2. The speech of the CEO of Y does not indicate that there will be redundancies in the Compliance section of X in which the Claimant works. It refers to the businesses within the group of which X formed part having an encouraging start to 2020 with strong results (see p.283), although it also stated that there could be parts of that group of businesses sold off. 56.3. The Claimant holds a senior level role in Compliance. She reports into the CEO and has a team of two reporting to her. We found that this role was equivalent to a promotion compared to the role held with the Respondent. The Claimant stated that it was more a question of increased liability because she held more Controlled Functions than in her role with the Respondent. But we found that there were a number of features pointing to a promotion: increased responsibility (or “liability” to use the Claimant’s term); increased Controlled Functions; significantly increased salary; management responsibility for others in a Compliance team.[57]The Claimant’s evidence was that over the five months leading up to the remedy hearing, she had submitted 70 job applications, for MLRO posts or other professional Compliance roles. The Claimant submitted a table at pp.340-342 which listed those applications. The Claimant had received only one telephone interview with HR, despite the fact that she now had two more years of experience (since resignation) at CF10 and CF11 level, which should have raised her profile considerably (Since December 2019, under a new system of regulation, she held SMF 16 and SM17, which meant responsibility for Compliance Oversight and Money Laundering Reporting). The Claimant relied on this table to support the allegation that she would suffering stigma in the labour market when made redundant, and would be out of work for 1-2 years.[58]The Tribunal made the following findings of fact, which we found did not support the claim of stigma suffered in the labour market: 58.1. We infer from all the evidence that X must have known of this Claim. Despite this, the Claimant had not been dismissed by X or Y, and nor did she adduce any evidence that she had been disadvantaged by X or Y because of the Claim. The Claimant had now been in continuous employment for more than two years in her new role. 58.2. All the applications relied upon were made after 23 September 2019, when the Preliminary Hearing in respect of remedy took place. At that hearing, the Tribunal was referred to Chagger. The Claimant would have appreciated, having considered that authority, the number of unsuccessful applications made by the claimant in that case. In cross-examination, the Claimant admitted that part of her intention when making these applications was to show that she could not obtain a better job, but that her other intention was to find new employment. We found that after that Preliminary Hearing, the Claimant applied for Compliance roles in a blanket way. 58.3. Although the applications were not a sham, the Claimant made them without concern or focus. They were like a toe dipped in the water to assess the temperature and to see what might happen if the plunge (of seeking a new job) was taken. We are not critical of this; but neither did we find it particularly persuasive in terms of evidence of stigma loss. 58.4. For example, the Claimant’s Position Statement (attached to the letter of instruction at “R1”) states that the Claimant’s career plan was to move away from the CFD industry and to move into investment banking, to secure better remuneration. But only very few of the roles applied for after September 2019 were investment banking roles. The Claimant had not planned to apply for a new role until finishing her law degree in 2021. 58.5. The Claimant usually applied for these roles through LinkedIn. A CV was held by LinkedIn; this was forwarded by LinkedIn for each application. This was demonstrated by a number of applications being made within minutes of each other, all with the same CV. The Claimant did not produce a bespoke CV for each application; this would have been possible if the CV held on Linked In had been revised regularly or for each post. 58.6. The only role where the Claimant received an interview (which was a telephone interview by HR) was the only role which paid the same salary as her current role. If anything, this suggested that the roles that she had applied for held less responsibility and were paid less. In the experience of the Tribunal, the recruiter was likely to have taken the view on sift that the Claimant was unlikely to take such a role. For example, at least some of the roles were more junior, such as where stated to be “entry level” posts, or that the role-holder would be part of a team, not at the level of head or director of Compliance reporting to the CEO. The Claimant admitted that she had applied for jobs including those which were paid less, because she was going to be made redundant and the thought of being out of work scared her. 58.7. The Claimant’s evidence was that she was not putting in applications for the sake of it. She accepted in evidence (in reply to a question from the Employment Judge) that some applications had been for roles in which she could develop skills or experience eg. one for a global investment management fund (p455). This tended to suggest, however, that she may not have precisely the experience that such a recruiter would want in those roles. 58.8. The Claimant’s evidence in respect of these job applications was inconsistent to the expert evidence, which explained that the Claimant would be rejected after the sift stage because of the Claim (ie. she was very unlikely to be the “preferred candidate”): see 7.5 expert’s report. This suggests that these applications were failing for reasons other than the alleged stigma, if the opinion evidence is accepted on this point. Relevant Law[59]The correct measure of loss is the tortious measure of loss, because discrimination cases are statutory torts: Ministry of Defence v Cannock [1994] ICR 918. Compensation in whistleblowing cases is also based on tortious principles. In both cases, compensation aims to put the victim in the position that they would have been in, had the discrimination and/or s.47B ERA victimisation not occurred. Injury to feelings[60]The principles of law to be applied by the Tribunal when assessing injury to feelings are set out in Armitage v Johnson [1997] IRLR 162, paragraph 27, which we summarise as follows: 60.1. Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award; 60.2. Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; 60.3. Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards; 60.4. Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings; 60.5. Tribunals should bear in mind the need for public respect for the level of awards made.[61]The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression: see Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102.[62]Further, we took into account the Presidential Guidance on Employment Tribunal awards for injury to feelings and psychiatric injury, and the First Addendum to them. The Claim was presented on 18 May 2018. We reminded ourselves that: “In respect of claims presented on or after 6 April 2018, the Vento bands shall be as follows: a lower band of £900 to £8,600 (less serious cases); a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900.”[63]The approach to an award of compensation for unlawful detriment because of public interest disclosure should be the same as that applied in cases of unlawful discrimination, namely as a statutory tort attracting an entitlement to compensation for injury to feelings and, in an appropriate case, aggravated damages: Shaw v Commissioner of Police for the Metropolis [2012] ICR 464. Aggravated damages[64]In Shaw v MPC, the EAT (Underhill J, as he then was) held as follows: 64.1. Aggravated damages are compensatory, not punitive, in nature. They are an aspect of injury to feelings. They represent the extent to which the injury to feelings caused by the wrongful act has been made more serious by some additional, aggravating, features. (see Shaw, paragraph 21). 64.2. There are three categories of relevant circumstances for an award of aggravated damages. These are (see Shaw, paragraph 22): 64.2.1. The manner in which the wrong was committed, with the classic question being whether the conduct was high-handed, malicious, insulting or oppressive (although this is not an exhaustive definition of the kind of behaviour which may justify an award of aggravated damages). 64.2.2. The motive behind the conduct, because discriminatory conduct based on prejudice or which is spiteful, vindictive or intended to wound is likely to cause more distress than the same acts would cause without such motive. The claimant must, of course, be aware of the motive for it to aggravate the injury. 64.2.3. Any subsequent conduct by the perpetrator. Relevant subsequent conduct includes (but is not limited to) conducting the trial in an unnecessarily offensive manner, where the employer does not take the complaint seriously, or a failure to apologise. 64.3. As explained by Mummery LJ in Vento, because there is no sure measure for assessing injury to feelings, choosing the “right” figure within that range cannot be a nicely calibrated exercise. Those observations apply equally to the assessment of aggravated damages—inevitably so because they are simply a particular aspect of the compensation awarded for injury to feelings. The artificiality of the exercise is further increased by the difficulty, both conceptual and evidential, of distinguishing between the injury caused by the discriminatory act itself and the injury attributable to the aggravating elements. Because of that artificiality, the dividing line between the award for injury to feelings on the one hand and the award of aggravated damages on the other will always be very blurred, and tribunals must beware of the risk of unwittingly compensating claimants under both heads for what is in fact the same loss. (paragraph 23) 64.4. The ultimate question is not so much whether the awards for injury to feelings and aggravated damages in isolation were acceptable, but whether the overall award was proportionate to the totality of suffering caused to the claimant. (post, paragraph 23) 64.5. It is good practice to formulate aggravated damages as a sub heading of injury to feelings. (paragraph 25) Personal injury[65]The assessment of damages for psychiatric injury is a question of fact to be determined by the tribunal.[66]Injury to feelings and psychiatric injury are distinct. But in practice, they are not always separable, leading to a risk of double recovery; it may be impossible to say when the distress and humiliation becomes a psychiatric injury.[67]Given the guidance in Armitage (that awards for injury to feelings should bear some broad general similarity to the range of awards in personal injury cases), the Tribunal also considered the Judicial College Guidelines for the Assessment of Damages in Personal Injury Cases, 14th Edition (ie. not the 15th Edition published in 2019). These include: “Psychiatric Damage Generally The factors to be taken into account in valuing claims of this nature are as follows:(i) the injured person’s ability to cope with life, education, and work;(ii) the effect on the injured person’s relationships with family, friends, and those with whom he or she comes into contact;(iii) the extent to which treatment would be successful;(iv) future vulnerability;(v) prognosis;(vi) whether medical help has been sought;(vii) Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. ... ”[68]There are four categories of award (including the Simmons v Castle uplift): Less Severe, Moderate, Moderately Severe and Severe. Of these, the first two are particularly relevant in this case: 68.1. Less Severe: between £1,350 and £5,130. Where the claimant has suffered temporary symptoms that have adversely affected daily activities; 68.2. Moderate: between £5,130 and £16,720. Where, while the claimant has suffered problems as a result of the discrimination, marked improvement has been made by the date of the hearing and the prognosis is good.[69]Hampshire County Council v Wyatt EAT/0013/16 is authority for the proposition (if authority was needed) that it was not always necessary for a Tribunal to have expert medical evidence to decide that injury had been suffered.[70]Wyatt was an appeal against an award in a disability discrimination case. The Employment Tribunal had found that the Claimant’s suspension was not an unlawful act but was the most proximate cause of her depression and triggered that depression; and the Respondent appealed against an award for personal injury on the basis that the Employment Tribunal was wrong to make such an award in the absence of expert medical evidence, which was necessary to establish both causation and quantum of this claim which are difficult issues to disentangle. The EAT held (Simler J. presiding): “28. Medical evidence in particular, is likely to assist in identifying whether(i) all the injury or harm suffered by a claimant can be attributed to the unlawful conduct and(ii) that injury or harm is divisible. It may assist in determining the extent to which any treatment a claimant has undergone has been successful. It may also assist in dealing with questions of prognosis. In those circumstances, we do not agree with the Tribunal’s statement that all a further medical report can do is say that the Claimant made certain claims and express a view as to whether the maker of the report believes them or not. We consider that in cases where there are issues as to the cause or divisibility of psychiatric or psychological harm suffered by a claimant, it is advisable for medical evidence to be obtained. Moreover, there is a real risk that failure to produce such medical evidence might lead to a lower award or to no award being made. 29. However, we do not accept the Respondent’s argument that medical evidence is an absolute requirement or that an award cannot be made in the absence of expert medical evidence in every such case bar those of low-value without error of law. We would be concerned to see such a principle established, bearing in mind in particular the financial cost involved in obtaining expert medical evidence. We also consider that there are potential practical difficulties that may arise…. ”[71]In this case, neither party proposed that expert medical evidence be obtained. Divisible and Indivisible Harm[72]The Tribunal considered whether the harm was ‘divisible’ or ‘indivisible’.[73]The Tribunal directed itself that divisible harm is where different acts cause different damage, or quantifiable parts of the damage. In these cases, the tribunal must establish and award compensation only for that part of the harm for which the respondent is truly responsible. Indivisible harm is where multiple acts result in the same damage.[74]Ms Mayhew argued that, in this case, the evidence and the findings showed that the harm was divisible because the Claimant was injured prior to the first proven act of victimisation or detriment.[75]In BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188, the Court of Appeal held: 75.1. Where the harm has more than one cause, a respondent should only pay for the proportion attributable to their wrongdoing unless the harm is truly indivisible. 75.2. Tribunals should try to “identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer’s wrong, and a part which is not so caused.” The Tribunal should see if it “can identify, however broadly, a particular part of the suffering which is due to the wrong”. 75.3. Where such a ‘rational basis’ can be found, the Tribunal should apportion accordingly, even if the basis for doing so is ‘rough and ready’. 75.4. Any such assessment must consider any pre-existing disorder or vulnerability, and account for the chance that the claimant would have succumbed to the harm in any event, either at that point or in the future. Principles of calculating pecuniary loss in discrimination cases & “stigma damages”[76]In the leading authority on pecuniary loss in discrimination cases, Chagger v Abbey National and Hopkins [2010] IRLR 47, the Court confirmed that the general rule in assessing compensation for the statutory tort of discrimination is that damages are to place the claimant into the position he or she would have been in if the wrong had not been sustained, ie the discrimination had not occurred: see paragraphs 56-60.[77]In a whistleblowing case, depending on the facts, 'stigma' damages may be awarded which are akin to those available in discrimination cases under the principles set out in Chagger.[78]The Respondent placed heavy reliance on the judgment in Chagger, arguing that as a matter of law, the Tribunal were unable to make an award of stigma damages in the facts of this case.[79]In Chagger, the claimant gave evidence that he had made 111 applications for new jobs, with no response, and he was out of work. In that case, there was no expert evidence. In considering which party had to prove stigma loss in the context of mitigation, the Tribunal considered whether the employee or the employer had to prove stigma loss. The Court stated: “We suspect that, given the anecdotal and flimsy nature of the evidence, the tribunal would have said that Abbey had not been able to demonstrate the likely effect of the stigma, and that it was altogether too uncertain properly to be evaluated.”[80]However, the Court went on to state (paragraph 84): “We would accept, however, that there could in theory be exceptional cases where the evidence would be sufficient for the tribunal to make an assessment. So it is necessary to know whether stigma loss is in principle recoverable. Furthermore, for reasons we give below, there is one situation at least where the only potential loss results solely from stigma factors. In that situation too it is vital to know whether, as a matter of principle, it is a recoverable head of loss. So the issue must be faced.”[81]In respect of whether stigma damages in discrimination cases were recoverable, the Court in Chagger provided guidance at paragraphs 85 – 94. Guidance on determining the amount of the stigma loss was provided at paragraphs 95-99. This guidance was all given in the context of determining stigma loss in the context of mitigation.[82]Although all the guidance in Chagger was taken into account by this Tribunal, we have extracted the following points: 82.1. Stigma loss is in principle recoverable. It is one of the difficulties facing an employee on the labour market. 82.2. If other employers refuse to employ on the grounds that they did not want to risk recruiting someone who had sued his employer and whom they perceived to be a potential trouble-maker, there is no reason why that would not be a loss flowing directly from the original unlawful act of the claimant’s employer. 82.3. The fact that the direct cause is the decision not to recruit does not of itself break the chain of causation. Nor can the action of the employee in taking proceedings conceivably be treated as such an act. It is a necessary step in order to obtain a remedy for the employer's wrong; it would be absurd if it were to distance the employer from the effects of that wrong. 82.4. Once it is accepted that stigma loss is in principle recoverable, in most cases it need not be considered as a separate head of loss at all. There will be evidence about the steps which have been taken by the employee to mitigate loss, and this will in practice guide the tribunal to reach a view on the likely period of unemployment. The stigma problem will simply be one of the features which impacts on the question how long it will be before a job can be found. 82.5. It is far from the common experience that those taking proceedings against their employer thereafter become virtually unemployable in their chosen field. Moreover, the fact that in a discrimination context it is unlawful to refuse employment for that reason ought further to reduce the likelihood of employees being adversely affected in this way. 82.6. A tribunal should take a sensible and robust approach to the question of compensation, as the Court of Appeal emphasised in Essa v Laing Ltd [2004] ICR 746. Plainly it would be wrong for them to infer that the employee will in future suffer from widespread stigma simply from her assertion to that effect, or because she is suspicious that this might be the case. 82.7. Where there is very extensive evidence of attempted mitigation failing to result in a job, a tribunal is entitled to conclude that, whatever the reason, the employee is unlikely to obtain future employment in the industry. 82.8. “There is one exceptional case where it could be necessary for a tribunal to award compensation specifically by reference to the impact of stigma on future job prospects. This is where this is the only head of future loss. An example would be if in a case such as this a tribunal were to find that the claimant would definitely have been dismissed even had there been no discrimination. He would be on the labour market at exactly the same time and in the same circumstances as he would have been had he been dismissed lawfully. Accordingly, the damage to his employment prospects from the stigma of taking proceedings would be the only potentially recoverable head of future loss. Here, however, the employee would be asserting that this is a head of loss, and the onus would be on him to prove it. In practice this would be a difficult task. If he does establish such a loss, the tribunal will then be faced with the almost impossible task of having to assess it. The tribunal would have to determine how far difficulties in obtaining employment result from general market considerations and how far from the stigma. In the unlikely event that the evidence of the stigma difficulties is sufficiently strong, it would be open to the tribunal to make an award of future loss for a specific period. But, in the more likely scenario that the evidence showed that stigma was only one of the claimant's difficulties, it may be that a modest lump sum would be appropriate to compensate him for the stigma element in his employment difficulties. This approach would be analogous to the lump sum awards sometimes made in personal injury cases to compensate an injured claimant for the risks of future disadvantage on the labour market: see Smith v Manchester Corpn (1974) 17 KIR 1 . Even then, however, this should not be an automatic payment; there should be some evidence from which the tribunal can infer that stigma is likely to be playing a part in the difficulties facing the employee who seeks fresh employment.” (paragraph 99).[83]In a subsequent Court of Appeal decision, Small v Shrewsbury and Telford Hospitals NHS Trust [2017] IRLR 889, a case in which complaints of whistleblowing detriment under section 47B ERA were brought, the Court gave the following guidance (at paragraph 10): 83.1. Chagger establishes that, in principle, a claimant can recover for the consequences of any disadvantage he suffers on the labour market, by reason not only of having been dismissed by his previous employer but also of his having brought proceedings against that employer (so-called "stigma loss"). 83.2. Normally, that factor will not require separate quantification, because it will feed into the overall assessment of the claimant's loss of earnings to the extent that it affects the time which it has taken, or may take, or should have taken him to find alternative employment “but it accepts that there may be unusual circumstances in which it represents a distinct head of loss on its own (see paragraph 99 [of Chagger])”. 83.3. The term "stigma loss" is sometimes used loosely to cover loss going beyond the particular case considered in paragraph 99.[84]Further guidance was provided in Ur Rehman v Ahmad [2013] ICR 28 paragraphs 16-18. The EAT (Langstaff J, President) (paragraph 17) summarised how loss of a chance of finding re-employment should be calculated: “In every case it was necessary to ask whether, in relation to finding re-employment, stigma from the former employee's previous employment had(a) a real or substantial effect, and(b) if it did, how great an effect. In answering that question, it was appropriate to have regard to the entire history of the former employee's search for new employment, including the number of jobs applied for, how well targeted and presented the applications had been, the number of interviews obtained, how they had gone and any reasons given for rejection. While each application was relevant, it was necessary to answer the question on the basis of the job search in its entirety. It was not necessary as a matter of law for the former employees to call evidence from prospective employers in relation to the effect of BCCI “stigma” on the particular applications that had been made to them.”[85]In Ur-Rehman, at paragraph 20, the EAT emphasised the importance of a basis in the evidence to prove stigma loss: “There must be evidence to support a claim for loss consisting of difficulty in obtaining or keeping employment due to “stigma”, particularly where the stigma consists not of taking unjustified proceedings, but successful ones against a former employer. The evidence likely to be critical is that which can answer the questions identified by the Court of Appeal on appeal from the decision of Lightman J in Bank of Credit and Commerce International SA v Ali (No 2) [2002] ICR 1258 , which we have set out at para 17 above. They require more than a suggestion or suspicion that stigma might be at work—though, as with discrimination, it cannot be expected that would-be employers would happily confess to have turned an applicant away because he had justifiably complained about a breach of his employment rights by another on an earlier occasion. Stigma may have to be inferred, just as was the case with discrimination, a matter recognised in King v Great Britain–China Centre [1992] ICR 516 before statute passed the burden of proof to the employer in many cases of alleged discrimination, though this also requires a sound evidential foundation from which the inference may be drawn. If, however, (taking the evidence as a whole) there is insufficient to conclude that stigma has been working its insidious worst, then a tribunal can make no award.” Totality of loss[86]Cannock sets out general principles applicable in discrimination cases where compensation is being assessed, in the context of pregnancy discrimination: see section G of the EAT judgment. In that case, what was primarily in issue was the future loss suffered by service personnel who had left the forces because of the discrimination.[87]The general guidance at Cannock, section G, part 1 (referred to by Ms. Mayhew) was given in the context of the assessment of future loss. However, the same general point may be made in the assessment of general damages; it is not an exercise to be carried out in a slavish, arithmetical, way. A similar point is made in Shaw.[88]We found that these principles in G, part 1, of Cannock would also apply in this type of case, where a claim had been subjected to whistleblowing detriment and sex discrimination by victimisation.[89]In particular, we directed ourselves as follows: 89.1. There is a difference between the evaluation of a loss of a chance of future loss and a “fact” to be determined on the balance of probability in respect of past loss. 89.2. Tribunals should not simply add up the awards under each head. In reference to awards, a sense of due proportion involves looking at the individual components of any award, and then, standing back, considering whether the total award is a “just reflection of the chances which have been assessed.”[90]We directed ourselves, as we explained above in our summary of the decision in Johnson, that the Tribunal must not over-compensate the Claimant whether in respect of past loss or future loss. A just approach requires that the Tribunal stands back and reviews the total award to ensure that it properly reflects the loss suffered by the Claimant, having calculated the past loss and properly evaluated the chances where future loss is in issue.[91]In Wardle (below), Elias LJ explained, however, that a Tribunal may and should assess an employee’s future loss even where that involves a considerable degree of speculation: “50. I agree with Mr Jeans that it will be a rare case where it is appropriate for a court to assess compensation over a career lifetime, but that is not because the exercise is in principle too speculative. If an employee suffers career loss, it is incumbent on the tribunal to do its best to calculate the loss, albeit that there is a considerable degree of speculation. It cannot lie in the mouth of the employer to contend that because the exercise is speculative, the employee should be left with smaller compensation than the loss he actually suffers. Furthermore, the courts have to carry out similar exercises every day of the week when looking at the consequences of career shattering personal injuries. Nor do I accept a floodgates argument. The job of the courts is to compensate for loss actually suffered; if in fact the court were to conclude that this required an approach which departed from that hitherto adopted, then we would have to be willing to take that step.” Statutory uplift under section 207A Trade Union and Labour Relations Consolidation Act 1992[92]Section 207A(1)-(2) TULRCA 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) that 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%.”[93]Schedule A2 of TULRCA includes discrimination at work cases (sections 120 and 127 EQA 2010) and public interest disclosure victimisation complaints (section 48 ERA 1996).[94]The relevant Code of Practice is ACAS Code of Practice 1 (2015 version)(“the Code”). Paragraph 1 of the Code provides: “1. This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. – Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted. – Grievances are concerns, problems or complaints that employees raise with their employers. This Code does not apply to redundancy dismissals or the non-renewal of fixedterm contracts on their expiry.”[95]Accordingly, the Code applies to all disciplinary and grievance situations (save for two particular situations to which it does not apply: dismissals for redundancy and on the non-renewal of fixed-term contracts on their expiry): Holmes v QINETIQ [2016] IRLR 664, paragraph 7, per Simler J.[96]We took into the account the guidance as to the proper approach for Employment Tribunals to take when considering whether an uplift applied, set out in Allma Construction Ltd v Laing [2012] UKEAT/0041/11 per Lady Smith. We have used this guidance to structure our conclusions below.[97]The effect of Code of Practice 1 was discussed in Lund v St Edmund's School UKEAT/0514/12. Keith J explained (with our emphasis added): ''So although there are particular situations to which the Code does not apply – dismissals for redundancy and the non-renewal of fixed-term contracts on their expiry – it is intended to apply to those occasions when an employee faces a complaint which may lead to disciplinary action or where an employee raises a grievance. … The important thing is that it is not the ultimate outcome of the process which determines whether the Code applies. It is the initiation of the process which matters.”[98]In deciding its award, the Tribunal should have regard to the totality principle set out in Cannock, to ensure that the total award remains just and appropriate.[99]In Credit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604 (in the context of the now repealed adjustment of awards under the Employment Act 2002 s 31), the Court of Appeal (at paragraph 28) stated that once the Tribunal has fixed on the appropriate uplift by focussing on the nature and gravity of the breach, but only then, it should consider how much this involves in money terms. In considering the sort of sum which would be proportionate and acceptable it is of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages.[100]The guidance above in Wardle applies where there has been a breach of the Code and an uplift under section 207A TULRCA is to be applied: see Acetrip Limited v Dogma UKEAT/0238/18.[101]Any uplift must only be applied to those elements of the compensation that are referable to the complaint in respect of which there has been a breach of the relevant procedures: Wardle at paragraph 39.[102]Where aggravated damages and an ACAS uplift are awarded in the same proceedings, when assessing the overall award made, it is relevant for the Tribunal to consider whether there is double counting of matters that are relevant to both aggravated damages and the ACAS uplift when making both awards: Base Childrenswear Ltd v Otshudi UKEAT/0267/18 at paragraphs 47-48. Financial Penalties[103]Section 12A Employment Tribunals Act 1996 confers a discretionary power (not a duty) on the Employment Tribunal to order that a financial penalty to paid to the Secretary of State. Whether to make an award, and the amount of the award, are discretionary, subject to an upper cap of £5000 (where £10,000 or more is awarded in compensation).[104]The explanatory notes accompanying section 16 Enterprise and Regulatory Reform Act 2013 (which introduced section 12A) stated that its purpose is "to encourage employers to take appropriate steps to ensure that they meet their obligations in respect of their employees, and to reduce deliberate and repeated breaches of employment law".[105]In Waiyego v First Great Western UKEAT/0056/18, the Tribunal found only two breaches of employment rights and considered that this did not amount to a case with any aggravating features. The Tribunal had considered the parties' submissions and concluded that there was "no deliberate, malicious or negligent behaviour on the part of the Respondents". The EAT, having remarked that there was a lack of appellate authority on the point, concluded that given that there were only two breaches, the Tribunal was “undoubtedly right” not to make an award under section 12A ETA 1996. Submissions[106]The parties prepared written submissions, which the Tribunal read. We took into account both sets of written submissions and the oral submissions made on the second day of the remedy hearing. In addition, we took into account the later written submissions provided by the Respondent on 15 May 2020. It is neither necessary nor proportionate to attempt to summarise them here. We have addressed specific submissions in the course of these Reasons, but, for the avoidance of doubt, each and every submission was taken into account even if not expressly referred to in these Reasons. Conclusions[107]Applying the above principles of law to the findings of fact made in the Liability Judgment and those findings of fact set out above, we reached the following conclusions on the issues for determination. Issue 1: Loss of statutory rights[108]The Tribunal decided that the value of the loss of statutory rights was not as substantial in this case as in other cases, because the Claimant had secured a new job fairly shortly after her resignation, and she remained in that role up to the date of the remedy hearing. For those reasons, the Tribunal preferred the Respondent’s figure of £500 for this item of loss, which, as part of the compensatory award, must be uplifted by 25% due to the Respondent’s failure to comply with ACAS COP 1. Issues 2-3: Award for injury to feelings (including aggravated damages)[109]The Tribunal took into account the submissions of the parties on this issue, including those set out in the Respondent’s written submissions at paragraphs 22 to 24. The Claimant claimed £50,000 for the victimisation under section 27 EQA and a further £50,000 for victimisation under section 47B ERA.[110]The Tribunal took into account, in particular, paragraphs 33-34 above. We were conscious of awarding damages only for the injury to feelings arising from the unlawful acts of discrimination and whistleblowing detriment found proved ie. not including any injury arising from the unfair dismissal. In this section of the Reasons, and in the section dealing with personal injury, where we refer to “unlawful treatment”, this refers to victimisation under section 27 EQA or victimisation under section 47B ERA, not unfair dismissal.[111]In addition, although both victimisation under section 27 EQA and section 47B ERA was proved in respect of several acts, we reminded ourselves that we must not overcompensate by doubling up the award of compensation where there was, in real terms, only one act amounting to the unlawful treatment.[112]However, the Tribunal concluded that, amongst other treatment, the Claimant had been the victim of a concerted plan to deter her from pursuing the Claim. The plan included attempting to injure her employment prospects as a Compliance professional, her professional standing, her economic position, and deterring her from pursuing the claim against the Respondent. We found that the allegations against her were not merely negligent; the allegations were malicious and dishonest, in the sense that there was no basis in fact for them.[113]Moreover, the subsequent conduct of the Respondent, and specifically the retention of the Claimant’s sensitive personal data was done in the knowledge that the retention of this data was unlawful. It was a calculated risk by the Respondent, which showed a disregard for the law as well as the Claimant’s feelings and her emotional security.[114]Applying the guidance in Vento, and whilst taking into account at all times that such an award was designed to compensate the Claimant, not punish the Respondent, the Tribunal decided that: 114.1. Amongst the range found in discrimination cases, this was a more serious case of injury to feelings. The impact of the treatment of the Respondent on this Claimant was profound. It would not be just for the award to sit within either the lower bracket or the middle bracket of the Vento awards. 114.2. We found that a member of the Public who had read without indignation our findings of fact about the detriments to which the Claimant had been subjected and the degree of injury to feelings suffered as a result would be surprised if the award in this case were not placed in the upper bracket of Vento. We concluded that if this case were not placed in the upper bracket, it would be likely to damage public confidence in and weaken respect for the anti-discrimination and the public interest disclosure legislation. 114.3. Although there was not a long campaign of discrimination over many years (in contrast to Johnson), awards in the upper band in Vento are not restricted to such circumstances. However, in any event, in the present case, there were several unlawful acts as part of a concerted plan against the Claimant. The acts extended over a long period of time. Indeed, in respect of the sensitive personal data, the treatment had continued up to and including the liability hearing, which was a period of over 21 months. 114.4. Moreover, awards of general damages can only be assessed on the facts of the case; and each case must be seen in its proper context. The context in this case is that the Claimant is a Compliance professional, who had an unblemished record when this treatment arose. The Respondent engaged in very serious detrimental treatment, which caused her a very high degree of upset and distress, shook her confidence to the core, and put her in fear of High Court litigation.[115]The Tribunal concluded that the basic award for injury to feelings in this case would fall towards the middle of the upper bracket of the Vento guidelines.[116]Taking account of the facts found and the submissions made, the Tribunal concluded that £30,000 was the appropriate sum. We found that this award had some broad general similarity to the range of awards in personal injury cases. Here, the injury to feelings had lasted to this remedy hearing, over two years after the first acts. Having seen the Claimant give evidence twice, and heard and read her submissions, this Tribunal were satisfied that she would continue to suffer from the injury to her feelings over the longer term.[117]We have taken into account the value in everyday life of this sum, by reference to purchasing power or by reference to earnings. We reminded ourselves that this treatment occurred when the Claimant was earning over £100,000 per year. Given that the award was only around 25-30% of her overall remuneration package at the time, we did not consider that such a sum was disproportionate.[118]Again, on the facts of this case, we considered that the Public would respect such an award for the injury to feelings suffered by the Claimant. In particular, a member of the Public would consider that the number of tortious and detrimental acts, over a sustained period, and the seriousness of them, would be very likely to result in such a degree of injury to feelings that this sum was merited. Aggravated damages[119]The Tribunal considered the question of aggravated damages as a sub-heading of injury to feelings. The Tribunal took into account all the guidance within Vento and Shaw, particularly those points set out above. We were mindful that aggravated damages were compensatory; this Tribunal did not, in any event, allow itself to treat the award of aggravated damages as punitive. We recognised that the Claimant should not be overcompensated, and that there should not be double-recovery despite the line between injury to feelings and aggravated damages being a blurred one. We concluded that the figure claimed by the Claimant - £29,000 – suggested that she had taken an element of double recovery into account.[120]However, this Tribunal found that there were a number of factors in this case which did aggravate and increase the injury to the Claimant’s feelings. In particular: 120.1. The manner of the unlawful treatment of the Claimant was relevant. The treatment was oppressive. It was designed to seriously damage – if not to destroy - her career and her credibility as a Compliance professional and, particularly as time went on, to deter her from pursuing her Claim. The Respondent could not complain that the outcome of this treatment was that the Claimant suffered aggravated injury to her feelings in those circumstances. 120.2. The purpose of the grievance process was subverted. The grievance investigation report was used as a tool to attack the Claimant’s professional standing as a Compliance professional. This went beyond the normal injury that she might have suffered from the detriment identified; it aggravated the injury to her feelings. 120.3. The manner of the unlawful treatment was also malicious. For example, allegations were made to the FCA which had no basis in fact. 120.4. The manner of the unlawful treatment was high-handed. It included misleading public bodies, who were Regulators whose role was to ensure that the law in respect of compliance with the system of financial regulation was complied with. It included misleading others in the Claimant’s industry. The Claimant gave evidence that these matters magnified the injury to her feelings. 120.5. The Tribunal found that motive was a relevant factor. The Respondent’s actions were vindictive and were intended to wound the Claimant. The Tribunal noted that it was one thing for a discriminator to subject a claimant to various detriments and not to apologise; but quite another for the discriminator to do several acts to prevent a claimant pursuing their legal rights. In this case, we found that the Respondent’s approach to this litigation, with the use of tools to deter the enforcement of her rights (such as the unlawful retention of sensitive personal data and the threat of groundless High Court litigation), magnified the Claimant’s injury to feelings. 120.6. Moreover, as part of a concerted plan against the Claimant by the Respondent, former colleagues of the Claimant gave evidence against her which was untrue in certain respects. This undermined her confidence and promoted a feeling of powerlessness. The Claimant came to find that her beliefs about such a plan were in fact correct, not least by the evidence given. 120.7. The Respondent’s conduct after the specific incidents of unlawful treatment and during the course of this litigation are relevant. The Tribunal decided that, in particular, the failures to comply with its legal obligations under the Data Protection legislation were relevant. It is not a question of punishing the Respondent for showing a disregard for the law, which is not a matter for this Tribunal, nor of over-compensating by double recovery through aggravated damages. But it is important that cases are dealt with on their own facts, which is a point made in Shaw. On the particular facts in this case, this disregard for the Claimant’s data protection legal rights was deliberate and it extended over a very long period. This deliberate disregard caused severe aggravation of the injury to her feelings because of the nature of the highly sensitive personal material retained. The retention of it severely undermined the Claimant’s confidence. It triggered recollections of the violation of her dignity. It led the Claimant, in her own words, to feel “hopelessness” and “despair”. 120.8. Moreover, the Claimant realised that the Respondent was retaining the sensitive personal data in order to deter her from pursuing her legal rights; despite the Employment Judge at a Preliminary Hearing questioning how this data could be retained, the Respondent refused to return it or destroy it. This continued despite the Regulator warning the Respondent that its actions were likely to be unlawful, and then finding that they were unlawful.[121]Having considered all the above, and decided that the injury to feelings award should include an additional sum for aggravated damages, the Tribunal asked itself how this sum should be calculated. We asked ourselves, as suggested in Shaw at paragraph 24, what additional distress and upset was caused to this particular Claimant by the aggravating features in question.[122]We recognised that the Court in Shaw had referred to what might be considered conventional figures, having been shown a table by Counsel setting out that the majority of the aggravated damages awards in Harvey on Industrial Relations and Employment Law ranged from £5,000-£7,500. Ms. Mayhew argued that any such award in this case should be limited to £5,000.[123]However, having considered carefully the case of Shaw, the Tribunal noted that there was no authority which prevented a Tribunal awarding more than £7,500 for aggravated damages. This is not surprising: Shaw makes the point that each case must be determined on its own facts.[124]The Tribunal considered that an uplift of £10,000 would reflect the additional upset and injury caused by the aggravating features of this case. Our reasons for making this award may be summarised as follows: 124.1. The Tribunal considered that the additional distress and upset caused to the Claimant in this particular case was very substantial indeed. In the experience of this Tribunal, we considered that this was an exceptional case. 124.2. The case of Shaw – and the awards that the Court in that case was referred to – occurred some years ago. Shaw was heard by the EAT in 2011. The principle which is now well-established in the authorities and the Presidential Guidance is that the Vento brackets of awards for injury to feelings should be increased annually to reflect inflation. Given that aggravated damages are part of the injury to feelings award in some cases, it would be inconsistent for there to be conventional figures for aggravated damages which remained unchanged. Allowing for inflation, by the end of 2019, £7500 in 2011 was worth more than £9,200. 124.3. Standing back, we noted that the award for aggravated damages was one-third of the injury to feelings award. We noted that the Court of Appeal in Shaw had set aggravated damages at one-third of the injury to feelings award in that case, so our conclusion on the quantum of aggravated damages pointed to £10,000 being within the range of permissible awards.[125]In order to satisfy ourselves that the total figure for injury to feelings, including this uplift for aggravated damages, was proportionate, we took a step back and considered whether the total sum of £40,000 for injury to feelings amounted to over-compensation or double-recovery.[126]We concluded that it did not over-compensate the Claimant for the injury to feelings suffered, gravely aggravated as that injury was. As we noted above, the uplift for aggravated damages to the basic injury to feelings award was one third (33%). We considered that a reasonable member of the Public would not consider that unwarranted or excessive in the circumstances. The total award for injury to feelings (including aggravated damages) was around 30-40% of the Claimant’s remuneration when working for the Respondent. We noted the total award of £40,000 for injury to feelings was still within the upper bracket of Vento, despite all the aggravating features in this case.[127]We decided that an award at this level would serve to increase public confidence in the anti-discrimination and public interest disclosure legislation, not to diminish it. It would demonstrate to the Public that employees were to be protected from victimisation both during employment and after dismissal. We concluded that members of the Public in 2020, learning the findings of fact and the evidence in this case, would not be surprised either that that Claimant’s injury to feelings had been exacerbated, nor that the total sum awarded was £40,000. Issue 4: Stigma loss?[128]In submissions, Ms. Mayhew referred to various parts of the judgment in Chagger, which we have summarised above. The Respondent made four central arguments: 128.1. The loss was too remote. The Respondent relied on an argument that it would be unlawful for a future employer not to employ the Claimant if a reason was this litigation; and that the Respondent was not liable for that loss. 128.2. It was too speculative to make any award. At paragraph 99 of Chagger, the Court had provided guidance of critical relevance to this case. In Chagger, the loss had crystallised (or, perhaps, Ms. Mayhew meant that the loss could be crystallised). The Claimant and the expert had engaged in a whole new level of speculation, asserting that stigma attached to present transition to a more senior or better paid role (in investment banking). The Claimant would not be on the job market for such a role, with her law degree, until late 2021; it was difficult or impossible to assess market conditions and the Claimant’s individual position at that time. 128.3. Ms. Mayhew drew attention to the need for evidence of stigma loss. She drew attention to differences in the facts between Chagger and the Claimant’s case. In Chagger, the claimant had made 111 direct applications and been registered with agencies (so had been considered for more roles) and he had decided to re-train as a teacher; whereas in this case, the Claimant’s case was based on assertion, there was no evidence of redundancy, and she was still working in Compliance, and had made an “unfiltered” set of around 70 applications, of which around 31 at least were more junior. 128.4. If the stigma loss was found proved, only a modest sum should be awarded to compensate for future employment difficulties.[129]Ms. Mayhew argued that awarding stigma loss in this case would be saying that the employee could bring a stigma loss claim as a matter of principle for future indeterminate loss, caused by third parties as yet unknown. She did accept though that the outcome in certain cases was fact-sensitive; but the Court in Chagger had stated, in any event, that it was uncommon for an employee to be virtually unemployable in their chosen field.[130]Ms. Mayhew made criticism of the expert evidence in her written submissions. It relied on no more than anecdote, not market or analytical data.[131]The Tribunal reminded itself that the purpose of considering authorities is to apply the principles of law that they set out, not to compare one set of facts with another and to see if they are the same or sufficiently similar to those in the case before us. Therefore, the facts in Chagger were not to be treated as equivalent to legal principle. With this, and all the above law and submissions in mind, we reached the following conclusions.[132]The Tribunal was not impressed with the argument that such a loss would be too speculative. The Employment Tribunal is often called upon to assess the chance of reemployment, at what salary, and at what point in the future. We applied the point made in Wardle: it is self-serving for an employer to contend that because the exercise is speculative, the employee should be left with smaller compensation than the loss that she actually suffers. Tribunals need to be able to take a robust and sensible approach to compensation.[133]The Tribunal did not accept that the loss would be too remote. As explained in Wardle the chain of causation is not broken if other employers refuse to employ. The stigma loss has been caused by the first employer; there would be no loss at all if later prospective employers did not react to the stigma which the first employer made inevitable by their actions.[134]Moreover, the Tribunal does not read the judgment in Chagger as creating a hurdle of “exceptionality” before a claim for stigma loss can succeed. Exceptionality is an outcome, not a legal test required to be met when assessing general damages in this context. The point made in Chagger is that the sound evidential basis for finding the existence of stigma loss may well be rare. This is why we rejected the Respondent’s argument based on policy grounds; the Tribunal has not sought to widen the principles of stigma loss, but only to apply them.[135]As we understand the principles set out in Chagger, as a matter of law, there can be cases where an employee has obtained re-employment and yet can prove stigma loss. This is not ruled out in Chagger (which focussed on stigma loss as an aspect of loss of future earnings, which was in issue in that case), nor in Ur-Rehman (in which the claimant had, in contrast, already obtained re-employment for a period). In Chagger, the Court of Appeal expressly addressed the point of principle by using the example of the employee who has suffered no loss of earnings at all because they would have been dismissed fairly in any event. We consider that example is no different in principle from the situation in the present case.[136]Accordingly, applying Chagger (particularly paragraph 99 of the judgment), as a matter of law, the Claimant could in principle, and subject to proof, recover stigma damages.[137]However, on the totality of the evidence and facts in this case, the Tribunal concluded that the Claimant in this case had not proved stigma loss. In short, the sound evidential basis required to prove this head of loss was not established. Our reasons are as follows.[138]Fundamentally, the inference to be drawn from the primary facts was that the Claimant had not suffered any stigma loss. We repeat the findings of fact at paragraphs 52-58 above. Secondly, the Tribunal did not find that the expert opinion evidence carried much weight, when set alongside the primary facts. Analysis of the expert evidence[139]The expert evidence of Mr. Baxter might be seen as the Claimant’s trump card. However, it is important for the Tribunal to take a step back, and to recognise that the report is opinion evidence (albeit expert opinion), given at a particular point in time. The weight such opinion carries must be balanced against the facts found by the Tribunal and any inferences to be drawn from them. The Tribunal carried out such a balancing exercise.[140]In essence, the facts showed that, over two years after leaving the Respondent’s employment, the Claimant was in a new role, which held more responsibility, where her current employer had subjected her to no detriment at all, and where she was earning more money. Moreover, the Claimant had succeeded in complaints of whistleblowing detriment and victimisation; from our findings of fact, her integrity as a Compliance professional was intact.[141]The Tribunal accepted several of Ms. Mayhew’s criticisms of the expert evidence. We had difficulty in giving much, if any, weight to certain key statements of opinion evidence which lacked any methodology or empirical evidence base. Mr. Baxter’s opinion was based on not much more than anecdotal evidence, even if he was drawing on experience.[142]For example, the opinion that it was “extremely unlikely that C will become the preferred candidate after taking into account the stigma resulting from her Employment Tribunal claim…” was not the product of any analysis of data or recruitment industry evidence, academic study nor an inference from any statistics. There was no objective evidence to support it. We did not find this point to be established.[143]Moreover, on this point, Mr. Baxter accepted that whether the Claimant was appointed to Compliance posts applied for would be a matter of individual judgment for the employer at the time, and that recruiters would have no difficulty in putting the Claimant forward for positions. We found these points somewhat at odds with his pessimistic opinions about the Claimant’s future employment prospects in Compliance, including that she had only a 0-5% chance of appointment for a role for which she was otherwise suitable. These points (very low prospect of success, yet very high prospect of being put forward for a role) were also inherently inconsistent; a recruitment consultancy would find it unattractive to put the Claimant forward, if there was a very small chance of commission at the end of it and a larger risk of damage to their own reputation.[144]Furthermore, Mr. Baxter’s opinion did not take into account that there may be at least a category or section of employers who, because of the financial crisis of 2008 and the criticisms of numerous firms and banks, could find a candidate attractive where she had taken action as a Compliance Manager to uphold a company’s procedures, and therefore ensure regulatory compliance.[145]The Tribunal’s experience led it to consider that the type of future employer that the Claimant had in mind (demonstrated in her position statement) – including reputable investment banks – may well not be put off from recruiting her by the fact that she had brought a successful Employment Tribunal claim. There are legal obligations on Compliance officers to raise issues of non-compliance. This is what the Claimant did in her grievance. We had difficulty in understanding why that would be so much more negative than positive for the Claimant, in applications for Compliance roles, given her experience in a role carrying more responsibility since leaving the Respondent.[146]The evidence of the Claimant was that Compliance was a rapidly evolving area, which we accepted. From the evidence, and from experience in hearing other cases at this Tribunal, we recognised that there were legal obligations imposed on financial firms and institutions imposing the requirement to comply with the system of financial regulation. The penalties for non-compliance include criminal sanctions. Therefore, we could not accept the blanket approach relied on by Mr. Baxter that, in general, financial firms and banks would not want the Claimant as a preferred candidate.[147]Indeed, the Tribunal accepted one criticism of the expert’s evidence which was that he adopted a blanket approach to the impact of differing levels of seniority and different sectors within financial institutions, in terms of the attractiveness of the Claimant as a candidate: see response 6 to the Respondent’s questions.[148]In addition, the Tribunal attached little weight to Mr. Baxter’s opinion that the Claimant’s percentage chance of appointment to a suitable Compliance role with the benefit of the Tribunal’s liability decision was only 0-5%. In contrast, it appeared that Mr. Baxter’s opinion was that this chance would be 0% (see response 5, p.331), if the Claim had been unsuccessful in this Claim. In the absence of any methodology nor any empirical evidence for those conclusions, the Tribunal found it inherently unlikely that our Judgment and Reasons on liability had hardly made any difference to the Claimant’s prospects of reemployment, if she found herself on the job market, particularly when viewed with the fact that, since leaving the Respondent, she had held an apparently more senior and better paid position for over two years.[149]The Tribunal considered the opinion evidence that the Claimant would never remove the stigma arising from a Tribunal Claim. If correct, this could have a dramatic effect on the Claimant’s career prospects. However, the expert made no attempt to explain or justify this opinion with reference to empirical or objective evidence. Secondly, the Tribunal recognised that there is a difference between stigma loss and events which form part of an applicant’s background which can be set in context, after a period of time in other roles, and where performance remains successful. We decided to give very little weight to Mr. Baxter’s opinion on this point, given that he appeared to give no particular weight to the fact that the Claimant had been appointed to a new role which she remained in two years later, holding more responsibility.[150]In addition, the Tribunal attached little weight to the opinion that it was “virtually impossible” for the Claimant to progress her career both within the CFD industry or within a lower/middle or top tier investment bank, for the rest of her career. In the absence of any empirical or some form of quantitative evidence for that conclusion, which looked at the effect of Employment Tribunal (or other) claims made by Compliance professionals (or other professionals linked to Compliance) on promotion or transitioning to a new type of business, the Tribunal found that this opinion evidence was not convincing.[151]The Tribunal noted that at the time that the expert was instructed, he was not provided with evidence of the roles applied for by the Claimant which formed part of the evidence in the Bundle. He could neither comment on those roles, nor the quality of the application made, nor take into account those rejections.
Summary
[152]We concluded that the expert evidence did not prove that the Claimant had suffered stigma loss, whether taken alone or when weighed with the evidence of the Claimant and Mr. Friend.[153]In summary, we concluded that the Claimant had suffered no stigma loss. Accordingly, the Tribunal did not need to consider how any such loss should be quantified in this case. Issue 5: Personal Injury[154]Recognising that the assessment of damages for psychiatric injury is a question of fact to be determined by the tribunal, we considered the relevant findings of fact set out above.[155]Injury to feelings and psychiatric injury are distinct. This Tribunal understood and considered the risk of double recovery. We sought to separate out the evidence of the injury to feelings suffered, and the pain and humiliation felt by the Claimant, from the evidence of personal injury, which we found to show exacerbation of her symptoms caused by the unlawful treatment. Our forensic examination of the relevant evidence is demonstrated by the above findings of fact.[156]The Tribunal considered whether the harm was ‘divisible’ or ‘indivisible’, directing ourselves to the law summarised above. We accepted the Respondent’s argument that, in this case, the evidence and the findings showed that the harm was divisible because the Claimant was injured prior to the first proven act of victimisation or detriment. Therefore, we looked at our findings of fact in respect of the exacerbation of that injury, and sought to award damages only in respect of that exacerbation. The Claimant argued that the award should be £30,000; but we concluded that an award in this sum would, in effect, be awarding damages for more than the exacerbation to the injury.[157]Given the guidance in Armitage, the Tribunal directed itself to the relevant Guidelines for the Assessment of Damages in Personal Injury Cases. We concluded that an award for pain suffering and loss of amenity in the Moderate bracket was appropriate, for the following reasons: 157.1. The Claimant’s symptoms could not realistically be categorised as temporary in sense of short-term. An award in the Less Severe category would not reflect the symptoms of the exacerbation suffered by the Claimant over a significant period. We did not accept the Respondent’s submissions that the award should be in the Less Severe (and lowest) category of the Guidelines. 157.2. The symptoms had a substantial effect on the Claimant’s ability to cope with life and education, and, to a lesser extent, her work. 157.3. The severe effect of those symptoms lasted several months, gradually improving. By November 2018, there was significant improvement, which has continued over time up to the date of this hearing. There had been a marked improvement to the date of the remedy hearing, but the symptoms had not completely resolved. 157.4. The Tribunal concluded that the Claimant was not as injured as many, less resilient, claimants might have been. She was perhaps fortunate to have a robust character who, despite her symptoms, was able to persevere and continue with work and daily activities. 157.5. The Tribunal concluded that the prognosis for the symptoms attributable to the unlawful treatment was good, for the reasons that we have explained in the findings of fact. 157.6. The Moderately Severe category of awards is suggested by the Guidelines to include cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment. Given our findings, the award for personal injury in this case does not fall within that category.[158]The Tribunal took into account the relevant findings of fact, the question of divisibility, the need to avoid double-recovery, the Claimant’s recovery and prognosis, the submissions, and the points made in the above paragraph. We concluded that the appropriate award of general damages for personal injury was £7,500.[159]The Tribunal cross-checked whether the total award of compensation (including injury to feelings) was excessive or disproportionate. We noted that this award for personal injury was at the lower end of the range of awards within the Moderate category. The Tribunal concluded that the award of £7,500 was proportionate to the findings of fact made and the exacerbation suffered by the Claimant. Issue 6: Statutory uplift for failure to comply with the ACAS Code of Practice 1 on disciplinary and grievance procedures Should an uplift be applied to the awards for public interest disclosure detriment or victimisation?[160]In respect of whether the Tribunal should determine that an uplift should be made, and if so, in what amount, in summary, the Respondent argued that: 160.1. the findings of fact in support of the findings of detriment in respect of the complaints under section 47B ERA and victimisation under section 27 EQA did not relate to identifiable breaches of the Code, but to the quality of the decision-making; 160.2. although the Tribunal concluded that there was a failure to genuinely investigate the Claimant’s grievance, this was already compensated for by the damages to be awarded in respect of the associated detriment, and was not a breach of the Code; 160.3. the Claimant’s complaints in relation to the grievance were limited to the appointment of the investigator and refusing to delay the grievance process; 160.4. an uplift under section 207A TULRCA cannot be supported by a general finding that the Respondent handled the grievance badly, in terms of poor decision-making; clear findings of fact were required that an identifiable section of the Code was breached; 160.5. any breach was not unreasonable; 160.6. it would not be just and equitable to increase any award; 160.7. any uplift should be modest.[161]We have considered those arguments in the course of analysing what, if any, uplift should be made, by asking ourselves the questions suggested in Laing. Does the ACAS Code apply?[162]The Claimant submitted a grievance on 15 December 2017. The contents of the grievance are described at paragraphs 160-172 of the Judgment and Reasons on liability. Therefore, the Code was engaged.[163]At paragraphs 26b and 27 of its submissions, the Respondent argues that the stages of the grievance which took place whilst the Claimant was an employee were either in compliance with the Code or not covered by it; and it argues that the Code did not apply after her resignation on 2 February 2018.[164]The Tribunal rejected the argument that the Code did not apply after 2 February 2018. Although in Lund, the EAT were considering a dispute about the application of the Code in a disciplinary situation, the Tribunal directed itself that the same point applies in grievance situations: if the employer treats a complaint as a grievance, it is the initiation of the grievance process which determines whether the Code is engaged. It was immaterial that the Claimant resigned on 2 February 2018. The Tribunal considered that it would undermine the purpose behind the statutory provisions if an employer could ignore the grievance of an employee whose employment had terminated, not least because it might be a reasonably common occurrence for a grievance to be lodged before resignation or dismissal, but also because such an approach would favour the employer who deliberately breaches the implied term of trust and confidence after receipt of the grievance in order to cause a resignation. Has the Respondent failed to comply with the Code in any respect?[165]In respect of the first of the Respondent’s arguments listed above (no identifiable breaches of the Code found by the Tribunal), the Respondent cited part of paragraph 65 in Qu. It is more helpful to consider the whole of that paragraph to view the passage cited in its proper context (and with our emphasis added): “65. The claim in this case was for unfair and unlawful dismissal arising out of the Respondent's handling of the PIP process conducted over a period of 13 months by Mr Lee and other managers, and to which the ACAS Codes of Practice on disciplinary and grievance investigations applied. In addition, the Employment Tribunal found that the Claimant had been unlawfully victimised in other respects about which he complained through various grievance processes. Again, the ACAS Code applied to those investigations. There are findings as set out above (and elsewhere in the Liability Judgment) that are directly relevant to minimum procedural standards specified in the ACAS Code dealing with disciplinary action and grievance investigations. For example, in relation to disciplinary matters the Code requires an employer to establish the fact of the case, inform the employee of the problem, hold a meeting with the employee at which the employee may be accompanied, decide on appropriate action, which should be communicated to the employee in writing, and give the employee an opportunity to appeal. In relation to grievance issues the Code provides for a formal meeting to be held without unreasonable delay after a grievance is lodged; for an opportunity by the employee to explain their grievance and how it ought to be resolved; for a proper investigation to establish the facts; and where the employee feels that the grievance has not been satisfactorily resolved, the opportunity to appeal. Read fairly, it seems to me that the Tribunal's findings in the Liability Judgment do sufficiently identify the provisions of the ACAS Code with which the Respondent failed to comply and do set out adequately the basis on which the Employment Tribunal concluded that the Respondent had failed to comply with those provisions. These are not findings based on any assessment of the quality of the Respondent's decision-making. They are findings about failings in the process that was adopted, and importantly include an implicit finding that the Claimant's grievances in relation to the PIP process leading to his dismissal were not considered in good faith. That latter finding is itself a finding of breach and not an assessment of the quality of the Respondent's decision-making (see if necessary, De Souza (above) at paragraph 54).”[166]The Tribunal in the present case found, in effect, that the grievance was not dealt with in good faith; it was not a question of the quality of the decision-making or the process used. The independence of Mr. Gordon was compromised, there was no genuine investigation, and, in fact, the grievance report was a tool for the Respondent to attack the credibility of the Claimant: see paragraphs 60-65 and 148-149 of the Liability Judgment.[167]We concluded that findings of fact in our Judgment on liability did sufficiently identify the provisions of the Code that were breached. We agree with and adopt what was said by Simler J in Qu: the Code implicitly requires, where investigation is necessary (and it must have been deemed necessary in this case, because the Respondent purported to carry one out), “a proper investigation to establish the facts”. ACAS, and probably both employer and employee representative bodies, would be surprised with the propositions put forward by the Respondent in this respect. The Code is a tool for the spectrum of people engaged in employment relationships, not a technical piece of statutory drafting.[168]In respect of the third of the Respondent’s arguments, the Respondent contended that the Claimant’s complaints in respect of the breach of the grievance part of the Code were limited only to those two matters stated at Issue 23(4) and (5) in the List of Issues. The Tribunal did not accept that it was strictly limited to the wording of the list of issues in this respect.[169]Primarily, the Claimant had alleged as a substantive complaint of public interest disclosure detriment (issue 7(9)) that her grievance was not properly investigated.[170]It is true that this substantive complaint is not also repeated at paragraph 23 of the List of Issues (which deals with the ACAS Code specifically). But the statutory questions are those identified by Lady Smith in the Laing case (relied upon by the Respondent). These questions do not include whether a claimant has correctly set out the List of Issues.[171]Moreover, the Respondent’s argument in this respect is unattractive. The reality is that employees are sometimes dismissed before a grievance is determined (as in this case) and may have no way of knowing what happened in the conduct of a grievance, particularly in a case of this nature where there was a concerted, secret, plan against the Claimant.[172]However, the findings of fact and conclusions in the Liability Judgment set out fully and with clarity our decisions about the grievance process. It is obvious from those findings and conclusions that we found that the grievance process was not carried out in good faith. The Respondent has had the opportunity to appeal the Liability Judgment and an opportunity to make submissions at the remedy hearing about those findings.[173]In any event, issue 23(4) states that one failure to comply with the ACAS Code was “the appointment of the grievance investigator”. Here, if there is fault, it lies in the summary nature of this part of the List of Issues; but the meaning of this line was wellknown to the parties and the Tribunal at the time of the liability hearing. It was part of the Claimant’s case that the investigator, Mr. Gordon, was not independent: see paragraph 88 of the witness statement of the Claimant for the liability hearing.[174]The Respondent contends that there was no breach of paragraph 32 of the Code; but it is implicit in paragraph 32, when read with the rest of the relevant parts of the Code (specifically paragraphs 2 and 4) that the investigating manager should be independent and act fairly.[175]Paragraph 4 of the Code requires a grievance process to be dealt with fairly. The overarching breach in this case was that the grievance was dealt with in a totally unfair way and the conclusions were tainted by lack of independence or fairness by the investigating officer. This was contrary to paragraphs 4 and 32 of the Code, particularly when read with the emphasis on promoting “Fairness and transparency” in Paragraph 2 of the Code. In particular, there was a failure to genuinely investigate the Claimant’s grievance: see our conclusions under issue 7(9) of the Reasons for the liability judgment (at paragraph 382) and the findings of fact referred to therein. The grievance manager did not carry out an impartial or necessary investigation: see paragraphs 148-149 and 104- 105 of the findings of fact of the Liability Judgment. The approach adopted was wholly inconsistent with the purpose of a grievance investigation.[176]In short, the findings of fact in our Judgment on liability did sufficiently identify the provisions of the Code that were breached. It was not necessary to engage in a “tick-box exercise” in the course of providing our findings of fact, nor list by number each provision of the Code found to be breached. Was that failure (or failures) unreasonable?[177]The Tribunal were satisfied that these failures to comply with the Code were unreasonable. The Respondent had the resources to carry out a proper investigation and to deal with the grievance fairly; but it chose not to do so. The Respondent did not attempt a proper investigation into the issues of breaches of its Compliance procedures and financial regulation provisions, nor into allegations of sex discrimination. Given the gravity of those allegations, this was unreasonable in view of the detail of those allegations and the fact that they were made by its own Head of Compliance. Was it just and equitable in all the circumstances to increase the award?[178]The Tribunal concluded that it was just and equitable in all the circumstances to increase the compensation flowing from the detriments found to be caused by protected acts and public interest disclosures.[179]In respect of the second of the Respondent’s arguments (at paragraph 160.2 above), the Tribunal did not accept that, because part of the general damages awarded was in respect of the failure to genuinely investigate the grievance, no statutory uplift could be awarded for that alleged breach. The Respondent’s argument is either wrong in principle or does not apply on the facts in this case.[180]On the Respondent’s argument, where a substantive complaint of detriment amounted to a breach of the Code, there could never be a statutory uplift. Such a limitation is not mentioned in the statutory provisions, which would be a surprising omission if it were the law. Moreover, such a limitation would be inconsistent with the statutory purposes behind the uplift provisions – because it might well result in the more flagrant breaches, which were pleaded as acts of detriment, not attracting any uplift.[181]In any event, on the facts in this case, the Tribunal found that the breaches of the Code (of paragraphs 4 and 32) were very serious ones. The overarching breach was that the grievance process was wholly unfair; it was not a genuine exercise and its purpose was subverted. In particular: 181.1. There was a failure to genuinely investigate the Claimant’s grievance: see our conclusions under issue 7(9) of the Reasons for the liability judgment (at paragraph 382) and the findings of fact referred to therein. The grievance manager did not carry out an impartial or necessary investigation: see paragraphs 148-149 and 104-105 of the findings of fact of the liability judgment. The approach adopted was wholly inconsistent with the purpose of a grievance investigation. 181.2. The grievance process was not carried out in good faith. Despite the public interest disclosures contained within it (which were relevant to the clients of the Respondent, female staff of the Respondent, and the wider interest of the public), the grievance investigation report was used as a tool, to attack the Claimant’s credibility as a Compliance professional.[182]There were serious breaches of paragraphs 4 and 32 of the Code, and the nature of the breaches taken as a whole were grave.[183]The Tribunal concluded that the uplift should be applied to the award for injury to feelings (including aggravated damages) and personal injury. Those elements of the compensation are directly and substantially related to the complaint in respect of which there have been breaches of the Code. By what percentage should the award be increased?[184]At first, the Tribunal was minded to award an uplift of 25% in respect of the compensation awarded under section 47B ERA and section 27 EQA given the lack of mitigation for the Respondent’s unreasonable failure to comply with the Code. However, having considered the appropriate legal principles and all the submissions, we concluded that the appropriate uplift should be 20% for the following reasons: 184.1. There was far more than mere breach of the grievance process. The purpose of the grievance process was subverted as we have explained. Thus, the nature and gravity of the breaches were very serious. 184.2. The Respondent put its own desire to attack the Claimant for making the grievance containing the protected disclosures and protected acts found proved ahead of any consideration of compliance with procedure or fairness. The treatment of her grievance was designed to damage the Claimant’s standing in the industry; it went beyond merely protecting the interests of the Respondent company. 184.3. We noted that, although the unfair treatment of the Claimant’s grievance was only one of the detriments found proved, it was a substantial one, and it had ongoing consequences; because had the grievance been carried out properly, the treatment of the Claimant thereafter may well have been more restrained and the degree of injury may have been reduced. 184.4. An award of aggravated damages had been made. We noted that one reason for the award of aggravated damages was the treatment of the Claimant’s grievance. Applying Otshudi, we considered that there would be double-counting of matters that are relevant to both aggravated damages and the ACAS uplift when making both awards if the maximum uplift were awarded. 184.5. Having reviewed the relevant statutory provisions, we considered that the Tribunal had the power to make differential awards in respect of the uplift to the compensatory award for unfair dismissal, and the uplift to the compensation awarded for discrimination and detriment. Section 207A(2) ERA states: “If, in the case of proceedings to which this section applies, it appears to the employment tribunal that: … the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies;” There is no statutory restriction to a single “matter”. This provision envisages that the proceedings may refer to a number of matters.[185]The Tribunal has taken into account the impact of the uplift on the overall award. We have considered the passage from Wardle, at paragraph 29, per Elias LJ, who was considering a case where an uplift of 50% had been awarded: “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.”[186]However, in this case, this guidance is of limited assistance because: 186.1. The uplift here is not for pure procedural failings. There was no genuine grievance investigation. The process was not merely unfair; its purpose was subverted into an attack on the Claimant. 186.2. The sums to be awarded following the uplift come nowhere near exceeding the award for injury to feelings.[187]The provisions within section 207A TULRCA have the effect of being a statutory penalty of further compensation, for unreasonable non-compliance with the Code. This Tribunal, however, took a step back and considered the overall compensation after this uplift was applied. We noted that this uplift added a further £9,500 to a general damages award of £47,500. We considered whether the Public would consider this uplift, and the total figure, to be disproportionate or excessive.[188]Again, the Tribunal concluded that the Public would consider that this uplift was proportionate compensation given the serious breaches of the Code. It was an award which was slightly lower than that awarded for aggravated damages, amounted to less than 25% of the total award of injury to feelings (including aggravated damages), and this uplift award is not significantly higher than the award for personal injury.[189]The Public would expect something as important as an ACAS Code of Practice, which is formulated for the benefit of both employers and employee to assist them to resolve disputes fairly, to be complied with. We concluded that they would be surprised, if not shocked, if an employer could ignore the Code and behave as the employer had in this case yet avoid a substantial uplift. The “totality principle”[190]The Tribunal took into account the need to look at the totality of the compensation, and whether it was proportionate or involved over-compensation.[191]The Tribunal concluded that the Public would retain its confidence in the antidiscrimination legislation and the Employment Tribunal if an award of £57,000 was made for the complaints proved under section 47B ERA and section 27 EQA.[192]The Tribunal concluded that the Public would consider the overall award of compensation to be proportionate compensation given the nature and gravity of the unlawful conduct, the personal injury suffered because of it, the high degree of aggravating features, and the seriousness of the breaches of the Code.[193]We considered that the Public would consider that this case demonstrated the need for employees to be protected from malicious acts against them by a former employer. The Respondent knew what it was doing in its actions towards the Claimant; the Public would realise that it had made the stakes very high for the Claimant, such as by a false complaint to the FCA (which was in effect alleging a criminal offence). A reasonable member of the Public would conclude that the Respondent had the resources to handle the Claimant’s grievance properly and fairly, but it chose to take a different course; and that it could hardly complain now, after a vindictive campaign against the Claimant, about an award of £57,000 compensation for the successful complaints of detriments and the further compensation for unfair dismissal. Interest award[194]A tribunal is able to award interest on awards of compensation made in discrimination claims brought under s124(2)(b) EQA, to compensate for the fact that compensation has been awarded after the relevant loss has been suffered (see s139 EQA and Employment Tribunal (IADC) Regs 1996).[195]The current rate of interest which applies is 8% per annum.[196]Interest due on the injury to feelings award (including statutory uplift) is calculated as prescribed in Regulation 6(1)(a) ET (IADC) Regs. In this case, there was a series of acts of discrimination commencing on 20 December 2017 which each contributed to the injury to feelings. Taking a rough, ready and pragmatic approach, the Tribunal has chosen the mid-point between the first act of victimisation and the last act of victimisation identified in the Judgment (13 April 2018) as the starting point for the calculation of interest, whilst recognising, of course, that certain acts of discrimination concerning the Claimant’s personal data continued over time. The starting day is therefore 57 days after 20 December 2017, being 15 February 2018. 15 February 2018 to 22 May 2020 = 828 days/365 = 2.2684 years £49,500 x 2.2684 x 0.08 = £8,983.23[197]Interest on the award (including statutory uplift) for the psychiatric injury runs from the date half way between the discriminatory act and the calculation date: see Regulation 6(1)(b) ET (IADC) Regs. We have taken the midpoint as 15 February 2018. This interest is calculated as follows: £9000 x 1.1342 x 0.08 = £816.62[198]The total award for interest is therefore £9,799.85. Grossing Up?[199]The Respondent accepted that there should be grossing up of that part of the Claimant’s taxable losses in excess of £30,000.[200]However, in this case, only the award for unfair dismissal is a termination payment; the award for injury to feelings (including aggravated damages and the statutory uplift) arose due to discrimination during and after employment, but was not connected to the termination of employment in any way. Therefore, no grossing up is required: the Claimant is not subject to tax on either the award for unfair dismissal (which is below £30,000) nor the award for victimisation and public interest disclosure detriments (which is not connected to termination of her employment). Issues 7 and 8: Section 12A Employment Tribunals Act 1996[201]Ms. Mayhew’s submissions asserted that the Respondent’s behaviour in this case did not cross the “threshold” (as she put it) of “deliberate, malicious or negligent behaviour”. Her submissions lacked any justification from the facts found by the Tribunal for this statement.[202]The Tribunal considered First Great Western v Waiyego. In that case, the EAT did not conclude that there was a threshold of “deliberate, malicious or negligent behaviour”. In Waiyego, the EAT considered that, whatever the threshold, the employer’s conduct did not come close to it. We noted, however, that the EAT directed itself to the explanatory notes accompanying the new provision.[203]In contrast to Waiyego, the Tribunal in this case has concluded that there were repeated breaches of employment rights, and that those breaches were, generally, deliberate. We concluded that there were aggravating features to the breaches of the Claimant’s employment rights. This is apparent from the conclusions in respect of liability.[204]The aggravating features are also demonstrated in our conclusions in this set of Reasons, particularly those in respect of the aggravated damages part of the injury to feelings award.[205]It is to be noted that the aggravating features were not trivial; they were substantial. They included malicious and false allegations (including to the FCA), a deliberate plan to damage the Claimant’s credibility and remove the Claimant from her post, serious breaches of the ACAS Code and deliberately ignoring basic principles of fairness. The way in which the grievance process was turned into a tool in an attempt to damage the Claimant is a further example of deliberate and malicious behaviour.[206]We concluded that the Tribunal should impose a financial penalty of £5,000 for the following reasons: 206.1. The nature, gravity, and the number, of the aggravating features put this case at the top end of the range of potential penalties. 206.2. The Respondent had paid no regard whatsoever to the protection conferred by the public interest disclosure legislation. Moreover, the Respondent had no regard to some basic tenets of the anti-discrimination legislation which have been in force for many years. In fact, the Respondent had gone out of its way not just to subject the Claimant to detriment, but to try to irreparably damage her career for raising matters of public interest and sex discrimination. 206.3. The Respondent paid no regard whatsoever to the Claimant’s data protection rights. It deliberately ignored the Data Protection Act, despite being told that it was acting unlawfully by the Claimant and the ICO and warned that it likely to be doing so by the Tribunal. This non-compliance was used as a tool against the Claimant, to deter her from pursuing her rights as an employee. The Tribunal found that the Respondent’s actions in this regard indicated that the award in this case had to be towards the very top of the range of awards in order to demonstrate that no company can consider itself above the law, nor seek to hide its own wrong-doing by use of unlawful means. 206.4. The Tribunal considered whether an order of the maximum sum of £5000 was disproportionate or unreasonable when set against the compensation already awarded. The Tribunal was satisfied that it was not disproportionate. A reasonable member of the Public who knew of this penalty provision would be very concerned if an award lower than the maximum possible award was made in this case, given the numerous breaches of employment law and the cynical conduct by this employer after the Claimant filed her grievance in December 2017. We concluded that a reasonable member of the Public would want to deter other employers behaving in this way, in order to reduce deliberate and repeated breaches of employment law in the future. 206.5. The Respondent had not suggested or provided any evidence that it did not have the means to pay this award. The evidence before us led to the inference that it could pay this award. Further, we note that the liability to pay is reduced by 50% if the penalty is paid within 21 days of notice of this order. 206.6. We were satisfied that the Public would have enhanced confidence in the Employment Tribunal system and the employment protection legislation if the maximum award were made in this case.
Summary
[1]The Respondent has conducted these proceedings unreasonably in respect of the following complaints: 1.1. the defence to the complaints of unfair dismissal under section 98 Employment Rights Act 1996; and 1.2. the defences to the complaints found proved at 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7 and 5 of the Judgment promulgated on 10 September 2019 under section 47B Employment Rights Act 1996 and section 27 Equality Act 2010.[2]The Respondent’s defence had no reasonable prospect of success in respect of the complaints identified at1.1 and1.2 above.[3]It is just and appropriate that a costs order be made.[4]The Respondent shall pay to the Claimant 65% of her legal costs reasonably incurred up to 24 June 2019 in respect of this Claim.[5]The Claimant’s application for the Respondent to pay her share of the fees of the single joint expert is refused.
Summary
[1]By email letter sent on 20 February 2020, the Claimant made a costs application, having first attempted to agree costs with the Respondent.[2]The Claimant produced invoices from solicitors who assisted her from time to time. The sum claimed in the application was £73,115 including VAT. At the hearing of the application on 5 March 2020, the Claimant also claimed the costs shown in the invoice marked C2 (for the period 5 February to 3 March 2020) of £1632. In addition, the Claimant claimed her share of the cost of instructing the joint expert, being £11,858 including VAT. The law on the award of costs in the Employment Tribunal[3]In the Employment Tribunal, costs orders are the exception rather than the rule. In most cases the employment tribunal does not make any order for costs. If it does, it must act within rules that expressly confine the Employment Tribunal's power to the specified circumstances set out within Rule 76: Yerrakalva v Barnsley Metropolitan Borough Council at paragraph 7 per Mummery LJ.[4]Rule 76 of the Employment Tribunal Rules of Procedure 2013 provides that a costs or time preparation order may be made where a tribunal 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.[5]The procedure for making a costs application is set out at rule 77. Rule 78 provides that the Tribunal may: “(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles;…;”[6]In Millan v Capsticks Solicitors LLP & Others UKEAT/0093/14/RN, the President of the EAT, then Langstaff J, described the exercise to be undertaken by the Tribunal as a three stage exercise, which may be paraphrased as follows: 6.1. Has the putative paying party behaved in the manner proscribed by the rules? 6.2. If so, it must then exercise its discretion as to whether or not it is appropriate to make a costs order 6.3. If it decides that a costs order should be made, it must decide what amount should be paid or whether the matter should be referred for assessment.[7]In McPherson v BNP Paribas [2004] ICR 1398, it was suggested that in deciding whether to make an order for costs, an Employment Tribunal should take into account the “nature, gravity and effect” of the putative paying party’s unreasonable conduct.[8]In Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420 (paragraphs 39 – 41), however, it was emphasised that the tribunal has a broad discretion, and it should avoid adopting an over-analytical approach, for instance by dissecting the case in detail or attempting to compartmentalise the relevant conduct under separate headings such as "nature", "gravity" and "effect". The words of the rule should be followed and the tribunal should "look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct … in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had".[9]The correct approach to costs in the Employment Tribunal was considered again by the Court of Appeal in Sud v London Borough of Ealing [2013] EWCA Civ 140. From paragraph 67, it adopted and emphasised the importance of the Yerrakalva approach. The words of the Rule should be followed and the Tribunal needs to look at the whole picture of what had happened in the case, then to ask whether there has been unreasonable conduct by the party. As was made clear in Yerrakalva, although causation is undoubtedly a relevant factor it is not necessary for the Tribunal to determine whether or not there was a precise cause or link between the unreasonable conduct in question and a specific cost being claimed. The circumstances do not need to be separated into sections, each of which in turn forms the subject of individual analysis, because this risks losing sight of the totality of the relevant circumstances.[10]Paragraph 14 of the Presidential Guidance Note on costs provides: “The circumstances described [in rule 76] require a Tribunal to consider first whether the criteria for an order are met. Each case will turn on its own facts. Examples from decided cases include that it could be unreasonable where a party has based the claim or defence on something which is untrue. That is not the same as something which they have simply failed to prove. Nor does it mean something they reasonably misunderstood. Abusive or disruptive conduct would include insulting the other party or its representative or sending numerous unnecessary e-mails.”[11]There is no rule of law that the discretion to award costs may only be exercised where deliberately dishonest conduct is shown, although if there is such conduct then a costs order may be more likely: see Brooks v Nottingham University NHS Trust [2018] UKEAT 0246/18 at paragraph 47 per Choudhury J (upholding an award of costs of £170,000 against a Claimant where the Tribunal did not find dishonest conduct).[12]The fact that a party may have given false evidence is not reason on its own to automatically order costs against the party. It is necessary to look at the whole picture of what happened in a case and ask whether there has been unreasonable conduct by the party: see Kapoor v Governing Body of Barnhill School UKEAT/0352/13 at paragraph 15 per Singh J.[13]In Yerrakalva, Mummery LJ was keen to emphasise that no gloss should be added by case-law to the powers conferred by the Rules.[14]There is nothing in the wording of the Rules to limit the costs that may be awarded to costs incurred at a particular stage of the proceedings or indeed to costs incurred after they have begun: Sunava v Martin [2017] UKEAT/0174/17 at paragraph 19, per Kerr J.[15]Rule 84 provides that the Tribunal may have regard to the paying party’s ability to pay. It was not suggested that the Respondent in this case did not have the ability to pay an award of costs. Submissions[16]The parties made oral submissions on the issue of costs. The Claimant relied on 54 findings of fact in the Judgment on Liability. She argued that, in effect, the Tribunal had found that there was a conspiracy between directors and employees of the Respondent to deliberately mislead the Tribunal, and thus the defence to the Claim had no reasonable prospect of success. In the alternative, the Respondent had behaved unreasonably, because its case had been based on lies.[17]Ms. Mayhew argued that the costs jurisdiction was compensatory, not punitive: the question for the Tribunal was which aspects of conducting the proceedings or defending had led to proceedings and costs. The Respondent did not concede that the threshold for awarding costs had been met. The Tribunal had to focus on whether any conduct was unreasonable, and, if so, which. Ms. Mayhew directed the Tribunal back to the original list of issues, explaining that the Respondent had succeeded in defending a number of issues.[18]Ms. Mayhew further argued that the expert’s fees were not recoverable; the Respondent had had to take the points on remedy which it had done. The sums claimed were excessive and outside the scope of what could be awarded; so the Respondent could not attempt to settle the Claim. Conclusions on the costs application (1) Had the Respondent behaved in the manner proscribed by the rules?[19]In determining whether a party acted unreasonably, the Tribunal considered that it should look at the whole picture of what happened in the case and to ask whether there had been unreasonable conduct, to identify the unreasonable conduct, and what effects it had. The test is not so high as to require that the conduct was vexatious or abusive.[20]The Tribunal found that the Respondent had acted unreasonably in defence of this Claim. We concluded as follows. We use the terms “nature”, “gravity” and “effect” as tools, to guide us in this exercise, although in reality, the line between the nature and gravity of the conduct is often a blurred one. Nature & gravity of the Respondent’s conduct
Remedy
[21]The nature and the gravity of the Respondent’s conduct demonstrated unreasonable conduct during these proceedings. It is not necessary for the Tribunal to outline each and every piece of unreasonable conduct by the Respondent, but the following matters demonstrate unreasonable conduct within these proceedings which we found to be particularly grave.[22]In respect of the complaint of unfair dismissal under section 98 ERA, a decision to dismiss had been pre-determined before any proper investigation. The Tribunal found that the Respondent engaged in an alleged disciplinary process which was a sham.[23]It was unreasonable conduct for the Respondent to attempt to defend a sham process as being fair, and attempt to defend the complaint of unfair dismissal as a whole, with false evidence at the liability hearing which sought to deny that a decision to remove the Claimant from her post had been made before the Claimant’s constructive dismissal. The Tribunal explained in its conclusions at paragraphs 9, 188 and 304 to 308 that the Respondent engaged in a sham disciplinary process and that it had pre-determined a decision to dismiss.[24]The Tribunal found as a fact that the Respondent used the grievance investigation in a retrospective attempt to attack the credibility of the Claimant as a Compliance professional. The grievance process, started by the Claimant with an honest belief, was used by the Respondent as a tool against the Claimant both because of the protected disclosures and to deter her from enforcing her employment rights against the Respondent: see paragraph 65 and 149 Judgment and Reasons on liability. It was unreasonable conduct for the Respondent to attempt to rely on the alleged findings of the grievance investigation to undermine the Claimant’s credibility and her case in these proceedings, when the report had been tainted by Mr. Pusco’s view of the Claimant; and there was no basis in fact for key conclusions of the investigation report.[25]Moreover, in respect of the recruitment of Mr. Gordon, the Tribunal found that in his evidence, Mr. Gee had sought to conceal the true nature of his engagement: see paragraph 149. He knew that he was not an independent grievance officer, but sought to paint him as such. This was evidence that Mr Gee knew to be untrue.[26]The Respondent had wrongly retained sensitive personal information relating to the Claimant. This data was retained throughout the liability proceedings. The Tribunal found that on this issue, the Respondent was guilty of various strands of unreasonable conduct within these proceedings: 26.1. Paragraph 65 of the ET3 was misleading and an attempt to conceal the true position (see the conclusion at paragraph 400 of the Reasons on liability). 26.2. This victimisation/section 47B ERA complaint was resisted on the basis that there was lawful justification for retention of the data. The Tribunal found that the Respondent had no genuine belief in the alleged justification for retention: see paragraphs 406-420 of the Reasons on liability for our conclusions. 26.3. The Tribunal found that there was no basis in fact for any of the potential legal claims that the Respondent had threatened the Claimant with; and, therefore, there was no justification for retaining her personal data for this alleged reason: see paragraph 415 of the Reasons. 26.4. The sensitive personal data was retained for an ulterior motive, to deter the Claimant from enforcing her legal rights, when it must have been apparent to the Respondent that it had no lawful right to hold onto such information, particularly after the finding of the Information Commissioner and the instruction to the Respondent to delete all data relating to the Claimant’s family life. This data was wrongly retained throughout the liability proceedings.[27]Several of the paragraphs in the Judgment and Reasons on liability identified that Respondent witnesses had not told the truth on oath or affirmation. In particular, paragraphs 9, 35, 37, 58, 65, 83, 139, 149, 158, 169, 175, and 211 of the Reasons on liability demonstrate either that a witness failed to give credible evidence and/or that they relied on a document or allegation that they knew contained false information. The fact that the Respondent’s witnesses gave (or relied on) false evidence did not automatically lead the Tribunal to conclude that the conduct of the Respondent had not been reasonable, but we found that it was a matter that carried substantial weight in establishing both that the conduct of the Respondent had been unreasonable and that the defence to several of the complaints had no reasonable prospect of success.[28]The Tribunal concluded that there was substance in the Claimant’s argument that the Respondent’s case in respect of most of the complaints after the Claimant raised her grievance in December 2017 was built on a series of untruths, following a coordinated plan to discredit the Claimant within these proceedings. This is supported by numerous findings of fact. In particular, serious yet false allegations of misconduct were made against the Claimant, including to the FCA. The Respondent persisted in these allegations within these proceedings, knowing that they were not true. The key decision-maker in this plan was Mr. Pusco, but we heard no evidence from him to explain the steps taken against the Claimant.[29]The Tribunal accepted that the Respondent was quite entitled to defend the Claim robustly, including by seeking to damage the Claimant’s credibility. However, the conduct of the Respondent went well beyond defending the Claim; it included dishonest conduct, which aimed to mislead the Tribunal, away from the true facts, and it aimed to deter the Claimant from pursuing her legal rights by alleging false matters which risked grave professional injury to the Claimant. In the context of a Claimant who is a Compliance professional, in a controlled function regulated by the FCA, the Tribunal found the unreasonable conduct in this case to be towards the more serious end of the range in terms of gravity.[30]The defence to the complaint of unfair dismissal under section 98 ERA, and to certain complaints of victimisation under section 27 EQA and under section 47B ERA, had no reasonable prospect of success. We repeat the factors set out above where relevant. In particular: 30.1. The Respondent’s defence to the complaints of victimisation (both under section 27 EQA and section 47B ERA) in respect of matters after she raised her grievance in December 2017 were based on alleged facts that were untrue or on alleged legal justification for which there was never any basis in fact. 30.2. The Respondent had pre-determined a decision to dismiss the Claimant, without any proper investigation and without any reasonable grounds to dismiss. (2) Exercise of the discretion; the effect of the conduct[31]The Tribunal concluded that the unreasonable conduct of the Respondent, and its decision to defend the successful complaints in the absence of any reasonable prospect of success, led to the Claimant incurring substantial legal costs.[32]We heard no evidence and no argument which might suggest that the Tribunal should not exercise its discretion once we had found the threshold reached.[33]We considered the serious nature of the unreasonable conduct, and its effect on the Claimant in terms of increasing the number of factual and legal issues for determination. This caused substantial increase to her legal costs of preparation for this hearing.[34]Moreover, this was not a case where the Respondent lost on simple disputes of fact. Here, the Respondent pursued a plan against the Claimant, which included a deliberate attempt to mislead the Employment Tribunal by its pleaded case and its evidence from the outset. This was in respect of multiple, central, allegations made by the Claimant in these proceedings, such as that a decision to dismiss her had been pre-determined, that the Respondent had misled the FCA, and that the Respondent had no right to continue to hold sensitive personal data after her employment. In those circumstances, the Claimant’s costs were inevitably going to be increased in a substantial way. In the experience of this Tribunal, it is far from simple to gather sufficient evidence, and to unpick the opponent’s evidence, so as to demonstrate a concerted plan against an employee.[35]The Tribunal noted, in particular, that the post-employment acts of victimisation and detriment added substantially to the issues and therefore the legal costs of the Claimant. For example, the Respondent’s refusal to comply with data protection legislation and its refusal to comply with the decision of the Information Commissioner added to the length and complexity of the case. There was absolutely no need and no legitimate reason for the Respondent to engage in the detriments at 4.3 to 4.7 of the Judgment on Liability.[36]It is important to note that the Respondent’s witness evidence was not rejected because there was mere misperception, or a failure to recall events. As the Tribunal has explained in Paragraph 8 and elsewhere of our Judgment and Reasons, the Respondent’s witnesses gave certain evidence that was not credible. In this case, the Respondent aimed to conceal from the Tribunal the true facts and the real reason for the detriments, which the Claimant did succeed in proving were acts of victimisation or section 47B ERA detriments. Inevitably, this added to the Claimant’s costs of proving her claim. (3) Quantum of the costs award[37]The Tribunal did not accept that it needed to correlate each piece of unreasonable conduct with a particular element of costs or section of the case. The approach to be adopted was that set out in Yerrakalva.[38]Ms. Mayhew’s complaint that there was no Schedule of Costs was not an attractive one. The Employment Tribunal Rules of Procedure 2013 do not make the preparation of a schedule of costs a pre-condition of a successful costs application. This is understandable; litigants in person (and several representatives) would be unlikely to understand what a schedule of costs required. In any event, each invoice had (in general) a list of the work done in respect of the invoice.[39]However, the Tribunal accepted the Respondent’s general point that the list of issues included a number of different complaints and issues and the Claimant had not succeeded on several of these. In particular: 39.1. The complaints of direct sex discrimination did not succeed. These involved consideration of a number of factual issues before the Claimant’s grievance was submitted on 15 December 2017. 39.2. The complaint of automatic unfair dismissal did not succeed (although the Respondent failed to establish any potentially fair reason for dismissal, so it was unlikely that more than trivial costs had been expended on this issue alone). 39.3. Certain alleged disclosures were found not to be protected disclosures. 39.4. Allegations of detriment caused by public interest disclosures or protected disclosures did not succeed. 39.5. The Claimant had not succeeded in proving aspects of her revised Schedule of Loss, particularly stigma loss.[40]The Tribunal accepted the Respondent’s argument that, if the threshold conditions were met, it should only be ordered to pay a proportion of the costs. This is because the Respondent was entitled to defend those parts of the Claim which did not succeed, and those parts of the Claim had increased costs.[41]Reminding itself that the jurisdiction to award costs was compensatory, and standing back to look at the case as a whole, the Tribunal concluded that, on a broad brush approach and to ensure that just compensation was awarded, it was appropriate for the Respondent to pay 65% of the Claimant’s legal costs incurred by the Claim, limited to the date on which the liability hearing concluded, 24 June 2019 (24 June 2019 being the final day of the hearing, which was our in chambers discussion). There was no real argument by, or evidence from, the Claimant that the Respondent had acted unreasonably at the remedy stage of the hearing.[42]In determining the figure of 65% of the costs up to the end of the liability hearing, we decided that those parts of the Claim which succeeded were very substantial in terms of the amount of evidence that had to be heard to determine them; for example, primary facts had to be found from which a plan to remove the Claimant was inferred. The Tribunal concluded that those parts of the Claim which succeeded must, inevitably, have involved the bulk of the legal costs in terms of advice and/or preparation.[43]Moreover, the Claimant’s costs were likely to have been exacerbated because of the deliberate actions of the Respondent in attempting to create a false narrative of events, which had to be responded to.[44]Further, by the Respondent alleging legal justification for certain acts and omissions, where it had no grounds for believing that any justification existed, it became necessary for the Claimant to respond to these parts of the Respondent’s case to show why no justification existed. Costs of the single joint expert[45]The Tribunal accepted Ms. Mayhew’s submissions that the Claimant could not recover her share of the costs of instructing the single joint expert, Mr. Baxter, whether to prepare his report or to respond to her questions. This was not part of the legal costs of the Claim.[46]In any event, if we are wrong about this, this item of costs arose because of an issue related to remedy (stigma loss), which the Respondent was successful in defending. Accordingly, it would not be just to compensate the Claimant by ordering the Respondent to pay the cost of this item. Case management: detailed assessment of costs[47]The precise amount of the costs order as to what costs are proportionate and have been reasonably incurred will require detailed assessment before a Judge trained to assess costs.[48]There will be a hearing to consider the detailed assessment of the Claimant’s costs on the first available date after 13 July 2020, with a time estimate of one day. There is no apparent reason why this hearing cannot take place remotely, by telephone. Case management orders in respect of this assessment of costs are contained in a separate order.[49]The Claimant shall serve a schedule of costs, identifying clearly the dates upon which work was done, the nature of the work done and by whom it was done, on or before 29 June 2020. The Respondent shall provide any response by way of a counter-schedule with points of dispute presented on or before 13 July 2020. The parties should provide dates to avoid within 14 days of promulgation of this Judgment.
Introduction
[1]By letter sent by email on 23 June 2020, the Claimant applied for a reconsideration of the Judgment on Remedy. The grounds for reconsideration included that the Tribunal had not taken into account the Claimant’s further written submissions dated 15 May 2020. For the reason we explain below, this proved to be correct.[2]By email dated 25 September 2020, the Respondent did not object to a reconsideration. The parties were content for the reconsideration to be dealt with on the papers.[3]For this purpose, a reconsideration hearing in chambers was originally listed to take place on 17 November 2020. For unavoidable reasons, one member of the Tribunal was unable to attend. The date was vacated. A further reconsideration was listed for today.[4]For the reconsideration, the Tribunal met remotely (by telephone) for a chambers discussion of the issues raised by the application for reconsideration. We considered, in particular, the Judgment on Remedy, the Claimant’s written submissions dated 15 May 2020 and the Respondent’s submissions filed on 15 May 2020. The issues on the Reconsideration[5]The application for reconsideration contained three basic grounds:5.1 The Claimant’s further written submissions dated 15 May 2020 had not been taken into account. The Respondent had had no regard to the ACAS Code of Practice in respect of her grievance and there was a calculated effort to cause the Claimant distress and suffering because she had complained about the Respondent’s actions. An uplift of 25% should be awarded.5.2 The agreed figure for the loss caused by the Claimant incurring expenses of £750 was not included in the total amount payable by the Respondent.5.3 The award for loss of statutory rights, £500, was not included in the total amount payable by the Respondent. Ground 1[6]As paragraph 7 of the Judgment on Remedy makes clear, the Tribunal invited the parties to make written submissions on the whether the uplift under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 should apply to the basic award for unfair dismissal and the awards for the victimisation found proved under section 27 Equality Act 2010 and section 47B Employment Rights Act 1996.[7]Due to administrative oversight, the Tribunal were not given a copy of the Claimant’s further submissions sent to the Tribunal Office on 15 May 2020 and no copy was placed on the file. Therefore, the Tribunal proceeded to reach its conclusions on the further chambers day (22 May 2020) without sight of the Claimant’s further submissions.[8]In its Judgment on Remedy, the Tribunal decided to reconsider its Judgment on liability in respect of the awards for the victimisation found proved under section 27 Equality Act 2010 and section 47B Employment Rights Act 1996. At the chambers day on 22 May 2020, the Tribunal decided to add a statutory uplift of 20% to those awards for victimisation. Our reasons are set out at paragraphs 160 – 183 of the Reasons for the Remedy Judgment.[9]In the interests of justice, on reconsideration of the Remedy Judgment, the Tribunal took into account the Judgment and Reasons particularly the paragraphs referred to above. We noted as follows:9.1 We had directed ourselves correctly in law. In particular, we had directed ourselves to section 207A TULR(C)A, relevant parts of the ACAS Code of Practice 1 on grievance procedures, and considered each of the questions identified as necessary by Lady Smith in Allma Construction Ltd v Laing [2012] UKEAT/0041/11.9.2 As a result, we had concluded that the Respondent had failed to comply with the ACAS Code in several respects, outlined in our decision at paragraphs 165 – 176. Then, we concluded that these failures were unreasonable failures; we concluded that the Respondent did not carry out a proper investigation into any allegations made by the Claimant, despite their gravity and her role as Head of Compliance.9.3 After this, the Tribunal had considered whether it was just and equitable in the circumstances to increase the award. We found that the award should be increased; our conclusions on this issue are at paragraphs 178-183. We concluded that the breaches of the Code were very serious and the nature of the breaches were grave.9.4 Finally, we had considered by what percentage the award should be increased. In considering this issue, we had directed ourselves to the guidance of the higher Courts in the leading cases, including Cannock, Credit Agricole Corporate Investment Bank v Wardle [2011] IRLR 604, and Base Childrenswear v Otshudi UKEAT/0267/18.9.5 At paragraphs 184-189 of the Reasons, the Tribunal explained its decision to uplift the award by 20%. In those paragraphs, we explain why we did not award the maximum uplift of 25%. In particular, applying the guidance provided by the Employment Appeal Tribunal in the case of Otshudi, we concluded that there would be double-counting of matters that were relevant to both the awards of aggravated damages and the ACAS uplift if the maximum uplift were awarded: see paragraph 184.4.9.6 The Reasons explained that the nature and gravity of the breaches of the Code were very serious, there was a high degree of aggravating features, and that the Respondent had acted maliciously towards the Claimant: see, for example, paragraphs 184.1 – 184.2, and 186.1.[10]In addition, the Reasons explained that the Tribunal need to take into account the “totality principle”, which meant that it had to take a step back, and consider whether the total compensation award was proportionate or involved overcompensation. We found that the Public would consider the overall award of compensation of £47,500 general damages and £9,500 statutory uplift (amounting to £57,000) to be proportionate: see paragraph 192.[11]By her “Written Submissions on Remedy” sent on 15 May 2020, the Claimant argued for a statutory uplift of 25%. Her submissions included the following:11.1 The Respondent did not carry out a genuine grievance process nor any genuine investigation. Instead, having received her grievance on 15 December 2017, it set in motion a campaign against her. The Claimant relied on the Tribunal’s findings of fact in the Judgment and Reasons on liability, citing paragraphs 60-65, 95, 104, 149, 159, 170, 171, 172.11.2 The Respondent refused to delay the grievance process due to her ill-health.11.3 The Respondent failed to allow any appeal.11.4 In summary, the Claimant’s argument was as set out at paragraph 12 of her submissions: “Furthermore, I submit that the Respondent deliberately used the investigation process to discredit me, damage my career and earning capacity and cause tremendous stress and anxiety. There were multiple deliberate breaches of the Code, for which there was no mitigation and there I submit that a 25% uplift is awardable.”[12]Having taken into account the Claimant’s written submissions, the Tribunal concluded that it should confirm its original Judgment on Remedy for the following reasons:12.1 The Tribunal had concluded, without sight of the Claimant’s submissions, that the Respondent had made multiple breaches of the ACAS Code of Practice on grievance procedures, that these breaches were unreasonable, that it would be just and equitable to uplift the award, and that a 20% statutory uplift should be applied.12.2 In reaching our conclusions on the percentage of the ACAS uplift, we had taken into account in substance all the points made by the Claimant in her further submissions. We had reached our conclusions at paragraphs 184- 189 by taking into account almost all the points made by the Claimant in her written submissions. Importantly, we had concluded that the nature and gravity of the breaches of the Code were very serious. We recognised in our conclusions that the treatment of the Claimant’s grievance was designed to damage her standing in the industry: see paragraphs 184.1 to 184.3 of the Reasons for the Remedy Judgment. In essence, we rejected the Respondent’s submissions that there should be nil or only a modest uplift applied; and we proceeded on the basis that there was no mitigation for the breaches of the Code.12.3 Insofar as we do not specifically refer to each of the paragraphs of our Reasons in the liability Judgment, nor to matters specifically referred to by the Claimant in her written submissions, the Tribunal are satisfied that, having now read the Claimant’s further submissions, they would have made no difference to the outcome to our decision on the percentage uplift to be awarded. For example, insofar as we do not specifically explain the impact on our reasoning of the finding that the Respondent refused to delay the grievance process due to the ill-health of the Claimant, this finding is not a finding of breach of the Code, although it may not comply with the ACAS Guidance; but, in any event, it is a matter of relatively little if any significance when set against the serious nature and gravity of the breaches of the Code which the Tribunal found were deliberate and part of a plan against the Claimant. In respect of the alleged failure to afford the Claimant an appeal, this was not a finding of fact made; but, in any event, in the circumstances, such a failure paled into insignificance against the nature of the breaches found proved.12.4 However, the fact that there was no mitigation for the serious, multiple, breaches of the Code did not mean that an uplift of 25% should be applied. The Tribunal were required to apply the relevant law, as explained in Cannock, Wardle, and, in particular, Otshudi, which essentially required the Tribunal to award compensation that was just and proportionate, and which avoided over-compensation. This required that the Tribunal must avoid double-counting when assessing compensation. The Tribunal had to avoid double-counting in this case because it had taken into account the Respondent’s treatment of the Claimant’s grievance when assessing the award for aggravated damages: see paragraph 120 of the Reasons on remedy.12.5 We concluded that the Tribunal had fully explained at paragraph 184 of the Reasons why we had not awarded a statutory uplift of 25%. In reaching our conclusion on this issue, we could see no misdirection of law, nor any failure to take into account any relevant evidence or finding of fact.[13]In addition, the Tribunal confirmed the liability judgment in respect of whether the statutory uplift should apply to the basic award. At paragraph 18 of the Reasons for the Judgment on Remedy, we explained that Section 124A(a) ERA provides that an uplift for unreasonable failure to comply with the Code may only be applied to the compensatory award. Therefore, the statutory uplift cannot, as a matter of law, apply to the basic award. Grounds 2 and 3[14]In the Grounds for the reconsideration, it is asserted that the Tribunal failed to include the £750 agreed sum for expenses and the £500 awarded for loss of statutory rights in the total amount awarded in the Judgment. These assertions are based on misunderstandings. They are incorrect for the following reasons.[15]It was agreed between the parties at the Preliminary Hearing on 23 September 2020 that the loss of earnings was £4171.05 plus the statutory uplift of 25%: see paragraph 19 of the Judgment and Reasons on remedy.[16]The parties agreed that the sum for expenses would be £750: see paragraph 20 of the Reasons for the Remedy Judgment.[17]The Tribunal awarded £500 for loss of statutory rights: see paragraph 108 of the Reasons for the Remedy Judgment.[18]The sums awarded for loss of earnings, expenses, and loss of statutory rights all form part of the compensatory award for unfair dismissal. The Tribunal calculated this award correctly, as follows: Loss of earnings: £4171.05 Expenses: £750 Loss of statutory rights: £500 Total Compensatory award: £5421.05
The issues
[19]The statutory uplift was applied to the total compensatory award: see 1.1.2 and 1.1.3 of the Judgment on Remedy. Conclusion[20]For all the above reasons, the Judgment on Remedy is confirmed. Case Number: 3201050/2018 EMPLOYMENT TRIBUNALS Claimant: Ms S Sineinikova Respondent: ActivTrades Plc Heard at: East London Hearing Centre (by Cloud Video Platform) On: 16 June 2021 Before: Regional Employment Judge Taylor Representation Claimant: In person Respondent: Ms Anna Greenley, Counsel COSTS ORDER
Conclusions
Conclusion
[1]Following a detailed assessment of costs, the Respondent shall pay to the Claimant costs awarded in respect of this claim in the amount of £22,795.26 (inclusive of VAT); this being 65% of her legal costs reasonably incurred up to 24 June 2019.[2]This award of costs is payable 14 days from date of promulgation of this order.