Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 August 2026
Before
LADY JUSTICE ELISABETH LAINGLORD JUSTICE WARBY
Between
OLIVIER ARGENCE-LAFONAppellantARK SYNDICATE MANAGEMENT LIMITEDRespondentOlivier Argence-Lagon appeared in person for in person for Respondent did not appear and was not representedHearing Hearing date: 7 July 2026Approved JudgmentThis judgment was handed down remotely at 10.30 am on 4 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
Introduction
[1]The Appellant, Mr Argence-Lafon, was employed by the Respondent. He brought a claim in the Employment Tribunal (‘the ET’) against the Respondent for whistleblowing detriment and for unfair dismissal. The ET dismissed his whistleblowing claim, but upheld his complaint of ordinary unfair dismissal. He appealed to the Employment Appeal Tribunal (‘the EAT’) against the dismissal of his whistleblowing claim. The Respondent cross-appealed against the ET’s decision on unfair dismissal. The EAT dismissed Mr Argence-Lafon’s appeal and allowed the Respondent’s cross-appeal.[2]Mr Argence-Lafon now appeals to this court, with the permission of Bean LJ. Bean LJ only gave permission to appeal on ground 9, which relates to the EAT’s decision to allow the Respondent’s cross-appeal, and to remit Mr Argence-Lafon’s unfair dismissal to the ET.[3]Mr Argence-Lafon represented himself at this appeal. The Respondent did not appear and was not represented. I commend Mr Argence-Lafon for his excellent preparation of the documents for this appeal, for his provision, before the hearing, of a speaking note, and for his succinct, informative and restrained presentation of his arguments on this appeal.[4]For the reasons given in this judgment I would allow his appeal.
The parties’ written cases before the ET hearing
[5]Mr Argence-Lafon’s former employer transferred its business to the Respondent. It was a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) applied. The effect of TUPE was to transfer Mr Argence-Lafon’s employment to the Respondent. After that transfer he continued to be employed as a senior underwriter. In section 8 his claim form (‘ET1’) Mr Argence-Lafon made a claim of unfair dismissal, for detriments contrary to section 47B of the Employment Rights Act 1996 (‘the 1996 Act’) and for automatically unfair dismissal contrary to section 103A of the 1996 Act. The grounds of claim attached to his ET1 were settled by counsel. The summary of the claim was that Mr Argence-Lafon was subjected to detriments for raising with the Respondent his concerns about what he understood to be a fraudulent insurance claim. I will refer to that in this judgment as ‘the Ken Bau loss’.[6]Before the events which led to his claim, he had never been ‘subject to performance/capability review procedures or any form of disciplinary action’ by the Respondent or by any previous employer. Paragraphs 30-33 of the ET1 alleged that he had been subjected to a performance review, and to unachievable performance targets. Paragraphs 39 and 41-43 also referred to a performance improvement plan (‘the PIP’). Paragraphs 44-46 described his dismissal and his appeal against his dismissal. In paragraph 51, the grounds gave three reasons why the dismissal was unfair.[7]In its answer to the claim (‘the ET3’) the Respondent indicated, in box 6, that it intended to contest the claim, and referred to the attached grounds of resistance. In summary, the Respondent contended that it had potentially fair reasons for dismissing Mr Argence-Lafon (capability and/or some other substantial reason), and that it had acted reasonably in all the circumstances in treating those reasons as a sufficient reason for dismissal. That summary was repeated in paragraph 56. Mr Argence-Lafon was said to have had a history of poor performance and to have failed to engage seriously with the PIP. His refusal to engage with the PIP had led to a breakdown of trust and confidence between Mr Argence-Lafon and his line managers. In paragraph 59, the Respondent denied that it had adopted an unfair procedure. Instead, ‘at every stage’ it had ‘acted reasonably and fairly in holding the dismissal and appeal hearings’.
The list of issues in the ET
[8]In paragraph 3 of its judgment, the ET listed the issues which had been agreed at the start of the hearing. The issues about unfair dismissal were what the sole or principal reason for the dismissal was (as elaborated in paragraph 3.4). If there was a potentially fair reason for the dismissal, the next issue was ‘whether the dismissal was fair or unfair under section 98(4)’ of the 1996 Act (paragraph 3.5).
The ET’s legal directions
[9]The ET’s legal directions about unfair dismissal (judgment, paragraphs 15-17) were concerned with deciding what the reason for a dismissal is, and how that is to be done if the real decision-maker hides behind an invented reason relied on by the person who dismisses. The ET did not refer to any of the many cases about the role of an internal appeal in a claim for unfair dismissal, some of which raise questions such as (to put it crudely) whether an internal appeal can ‘cure’ earlier defects in a decision to dismiss an employee. The judgment of the ET The ET’s findings of fact
The judgment of the ET
[10]The ET made careful and detailed findings of fact between paragraphs 19 and 91 of the judgment. The reader will understand this summary better if I explain that Mr Atkin was the Chair of Ark Syndicate Management Limited (the Respondent’s holding company) and Mr Beaton was the Chief Executive Officer of the Respondent. Mr Dawson was Mr Argence-Lafon’s line manager until 1 March 2019, when he became the Respondent’s Managing Director. After a hand-over, Mr Burton ‘formally’ became Mr Argence-Lafon’s manager in February 2020. Mr Brothers was the Respondent’s Risk Management and Compliance Director.[11]In its conclusions, the ET dismissed Mr Argence-Lafon’s claims to have suffered detriments on the grounds that he had made protected disclosures, and his claim under section 103A of the 1996 Act. The issues on this appeal are narrow, so it is not necessary for me to summarise those findings of fact in any great detail. I will therefore only refer, and briefly, to the findings of fact which are potentially relevant to this appeal.[12]There are two sets of paragraphs numbered 54-63 in the judgment. The first is between pages 16-18. The second is between pages 19 and 20. There is also a gap in the numbering of the paragraphs of the judgment between paragraphs 82 and 87, but the page number are consecutive. In paragraphs 24, 38, 53 and in both sets of paragraphs 53-64, 69, 70, 72, part of 74, 75, 76, 77, part of 78, part of 79, 80, 81, 82, 87, 88, 89, 90, 91, 92, 93, and part of 94, the ET made detailed findings of fact which are relevant to the PIP. In paragraphs 24 and 38 it found that Mr Argence-Lafon received bonuses in 2019 and 2020 (£30,312 and £40,000, respectively). In March 2021, by contrast, he did not receive a pay rise or a bonus (paragraph 59 bis).[13]In paragraph 53 it found that (as of November 2020) the members of Mr Argence-Lafon’s team had not been set personal objectives while he had been employed by the Respondent. Objectives had been set, rather, for the whole team. In the first paragraph 54 the ET described the performance of the individuals in Mr Argence-Lafon’s team by November 2020. His figures were significantly lower than those of the rest of the team.[14]In the first set of paragraphs numbered 55-64 the ET made detailed findings about meetings and correspondence concerning Mr Argence-Lafon’s performance. The ET criticised the Respondent in the course of the account; for example, in relation to the described and actual status of a meeting on 20 November 2020, and the lack of discussion about possible reasons for poor performance or advice about how to improve. After the Respondent imposed nine performance objectives on him, Mr Argence-Lafon had frequently made clear that he was not happy with objectives 4, 5 and 6. In his view they were unfair (see, for example, paragraph 55). He proposed alternatives (paragraph 58). The Respondent was not happy with those because it considered that they were not objectively measurable.[15]Mr Argence-Lafon was asked after a meeting on 9 April 2021 whether he was interested in discussing a ‘generous leaving package’. He was not (paragraph 61 bis).[16]In paragraph 69 the ET made findings about a letter dated 30 April 2021 in which Mr Burton described, in detail, the Respondent’s concerns with Mr Argence-Lafon’s performance. There had been four meetings since November 2020. Mr Argence-Lafon’s performance had not improved significantly in the three areas. Mr Argence-Lafon was told that the Respondent would initiate a ‘more formal’ PIP. The ET quoted a passage from the Respondent’s performance procedure.[17]There was a further meeting between Mr Beaton and Mr Argence-Lafon on 4 May 2021. Mr Argence-Lafon gave him a document in which Mr Argence-Lafon persisted in his allegations about the Ken Bau loss. Mr Argence-Lafon made various proposals. Mr Beaton did not accept them. Mr Argence-Lafon asked whether ‘he should continue with the performance improvement conversations’. Mr Beaton saw no reason why not. Mr Beaton sent Mr Campbell an email in which he said that it looked as though there was an irreparable breakdown in trust and confidence in the team. He also sent Mr Campbell a copy of the document about the Ken Bau loss which Mr Argence-Lafon had given him at the meeting (paragraph 70).[18]On 6 May 2021 Mr Dawson and Mr Burton met Mr Argence-Lafon to discuss the PIP. Mr Argence-Lafon said that he had made it clear many times that objectives 4, 5 and 6 were not realistic or achievable. He again explained why. He had agreed to accept them, reluctantly, because it was clear that his objections were not being accepted. Mr Dawson said that there was ‘chasm’ between what he believed a senior underwriter should be achieving and Mr Argence-Lafon’s performance. They agreed that if the objectives were not changed, they would be having the same conversation in three months’ time. Mr Dawson said he would like to have a ‘protected conversation’ with Mr Argence-Lafon. Mr Dawson said that they could continue with the PIP, but it was more likely than not that Mr Argence-Lafon would not succeed and would be dismissed after a long process. They offered Mr Argence-Lafon a settlement agreement; he would be dismissed and paid the equivalent of his salary for the rest of the year. (He was entitled to three months’ notice under his contract). Mr Argence-Lafon was given ten days (until 10 May 2021) in which to get legal advice and to respond.[19]On 20 May 2021, Mr Argence-Lafon’s solicitors wrote to the Respondent. The letter said that Mr Argence-Lafon had proved in 2020 that the claim about the Ken Bau loss was not valid. The letter referred to the meeting on 20 November 2020. Some of the objectives were not achievable. The solicitors said that Mr Argence-Lafon believed that the PIP and threat of dismissal were a detriment because of his public interest disclosures and that any dismissal would be automatically unfair. They asked for the letter to be treated as a grievance and for it to be investigated (paragraph 74).[20]Mr Beaton asked Mr Brothers to investigate the grievance. The ET described that investigation in paragraph 75. Mr Brothers sent Mr Argence-Lafon the outcome of that investigation on 11 June, attaching notes of various meetings between Mr Argence-Lafon and Mr Burton. His view was that there was a longstanding issue about Mr Argence-Lafon’s performance and that he must have known, or should have known, that. Mr Argence-Lafon had made no allegations of fraud about the Ken Bau loss until 27 April 2021. Before that he had just argued about coverage. There was no link between any protected disclosures and the instigation of the PIP on 24 April 2021.[21]Mr Argence-Lafon’s solicitors replied on 18 June 2021. They said that Mr Argence-Lafon believed that Mr Burton and Mr Dawson had ‘deliberately ignored and/or been complicit’ in fraud in relation to the Ken Bau loss. He believed they had set him unreasonable objectives and ‘created unjustifiable concerns’ about his performance because of his protected disclosures about the fraud.[22]Mr Beaton heard the grievance appeal on 29 June 2021. The meeting ‘went round in circles because [Mr Argence-Lafon] kept saying that there was a fraud and no-one had investigated it’. Mr Beaton said that it had been investigated, and that there was no evidence of fraud. Mr Argence-Lafon told him that there had been no team objectives before November 2020, and ‘Mr Beaton appeared to be surprised by that’. He asked whether Mr Argence-Lafon had had ‘any quarterly or half yearly appraisal’. Mr Argence-Lafon told him that he had only had an annual meeting to tell him about his bonus and whether he was getting a pay rise. He added that he had been told in March 2021 that he would not be getting either because he needed to perform better and to produce more business. Mr Beaton said he would investigate that and ‘speak to other people, and then get back to him. There was no evidence that Mr Beaton conducted any further investigation’ (paragraph 78).[23]Mr Beaton sent Mr Argence-Lafon the outcome of the grievance appeal on 9 July 2021. He dismissed the appeal. He repeated that the Ken Bau loss had been properly investigated. Mr Argence-Lafon’s allegations against Messrs Burton and Dawson were serious. Mr Argence-Lafon had no evidence to support them. On the topic of the PIP, Mr Beaton said, among other things, that it was clear that there had been concerns about his performance for a ‘substantial period’ before 6 May 2021. The PIP, which had been put on hold pending the outcome of the grievance, would start again.[24]There was correspondence about the objectives. Mr Argence-Lafon repeated that some of the objectives were unreasonable. He had no further proposals to make. He maintained that the PIP was a punishment for his allegations about the Ken Bau loss.[25]On 19 July 2021, Mr Argence-Lafon was invited to a disciplinary hearing. It was to be held with Mr Beaton and an external HR Director via Microsoft Teams on 30 July 2021. He was told that the hearing would consider whether he should be disciplined for failing to engage with and take the PIP seriously. The letter warned him that he might be dismissed. He could be accompanied. The ET quoted the relevant passage from the Respondent’s Disciplinary Procedure. An employee was supposed to be told of any complaint in writing, to be given adequate time to prepare and be given an opportunity to state his case.[26]On 29 July 2021, Mr Burton sent information about the performance of his team to the HR Director and to Mr Brothers. He said that in the period between April 2020 and April 2021, there had been ‘a large increase in the premium written by’ Mr Argence-Lafon. He gave an explanation. That increase was not referred to in Mr Burton’s letter inviting Mr Argence-Lafon to a formal PIP meeting.[27]The disciplinary hearing on 30 July was recorded. Mr Beaton was accompanied by an HR professional. Mr Argence-Lafon was alone. Mr Beaton described the PIP. A recent communication from Mr Argence-Lafon showed that he was not going to engage with it. That led to the question why the Respondent should continue it, and why the Respondent should not dismiss Mr Argence-Lafon. Mr Argence-Lafon’s failure to comply with a reasonable instruction had led to a breakdown in his relationship with Burton. Mr Beaton added that ‘[i]rrespective of that’ there had also been breakdown of trust between’ Mr Argence-Lafon, his line manager and his line manager’s manager. Ms Beamish from HR told Mr Argence-Lafon about the evidence about his performance since 6 May 2021 which showed that he had written less than 2% of the team’s income. He had written five risks; Mr Burton 88, and ‘Simon’ 35.[28]Mr Argence-Lafon said that he would enter into a PIP and was committed to the Respondent. He was not saying that all the objectives were unachievable, but that three were. His risk count was artificially low because of the way it was recorded. He also contributed to the team in other ways, such as ‘policy working and price modelling’, which had not been taken into account. ‘The objectives, with which he did not agree, were not “consistent” with what he had done since he joined the company’. Mr Beaton said (in short) that the PIP would not work if Mr Argence-Lafon’s managers thought the objectives were appropriate and Mr Argence-Lafon did not. They then discussed the three contentious objectives. In paragraph 90 the ET recorded an exchange between Mr Beaton and Mr Argence-Lafon in which Mr Beaton referred to a ‘fundamental breakdown of trust in the working relationship between’ Mr Argence-Lafon and Mr Burton. In part of that exchange, Mr Beaton referred to the allegation of fraud or complicity in fraud in the grievance appeal letter (see paragraph 21, above). He added that Mr Argence-Lafon refused to sign up to three of the objectives set by Mr Burton, and ‘Um, so I think those would be reasonable indications of a lack of a good working relationship and trust in your line manager’.[29]Mr Argence-Lafon was dismissed with immediate effect by a letter from Mr Beaton dated 9 August 2021. He was given three months’ pay in lieu of notice. He was told that any appeal should be addressed to Mr Atkin. After a summary of the hearing and a response to some of Mr Argence-Lafon’s points, Mr Beaton said that even if Mr Argence-Lafon’s risk count was understated, the premium he had written was well below what would be expected of a senior underwriter. There was ‘a fundamental and unsolvable disagreement’ between Mr Argence-Lafon and his line managers about what his role and objectives should be.[30]The ET quoted the two final paragraphs of the letter in paragraph 91. Mr Beaton concluded that there ‘is a complete breakdown of trust and confidence between you, EB and PD, but also Ark in general. You continue to maintain that both EB and PD have been complicit in an alleged fraud, and Ark has supported this notwithstanding that the Company’s investigation does not agree with your view…’ He added that he could not see any way in which the PIP could realistically continue, because Mr Argence-Lafon and EB had not been able to agree measurable objectives since ‘November 2022’ [sic]. Moreover, Mr Argence-Lafon continued to deny that there was anything wrong with his performance and to insist that the PIP was ‘a punishment for Ken Bau’. There was no reasonable prospect that Mr Argence-Lafon would ever meet ‘the appropriate performance standards’.[31]Mr Argence-Lafon appealed on 16 August 2021. He said that he thought his dismissal was unfair and that he had been dismissed because of his protected disclosures. He summarised events since November 2019. Before his accusations of fraud, neither his conduct nor his capability had ever been questioned. He had, throughout, tried to promote the best interests of the Respondent. That was ‘entirely consistent with’ his ‘obligation to promote trust and confidence’. All he had done was to try to highlight ‘genuine concerns about fraud’.[32]Before the appeal hearing, Mr Atkin asked Mr Burton and Mr Dawson for further information about the Ken Bau loss, and about Mr Argence-Lafon’s performance. He also asked them to comment on what Mr Argence-Lafon had said. They both did so. Mr Atkin asked when Mr Argence-Lafon had suggested that the Ken Bau loss involved fraud. Mr Burton said that that was in November 2019, and, although Mr Argence-Lafon had not, at that stage, expressly suggested fraud, ‘that was implicit’. For that reason, Mr Burton had ‘allocated so much resource to investigating the matter properly (100 hours with Mat Dan + peer review etc as you are aware). Most of the communications in the team were ‘verbal’ until ‘mid-2020 when Olivier was querying with the loss adjuster’. This summary refers to two investigations of the Ken Bau loss by Matthews Daniel, one of the loss adjusters under the terms of the policy, and by the claims adjuster, LWI. The ET made extensive findings of fact about these investigations. The reference to ‘100 hours’ may be to the fact that Matthews Daniel had sent the Respondent a bill for 100 hours of work replying to Mr Argence-Lafon’s questions (see paragraph 50 of the judgment).[33]The appeal hearing was on 23 August 2021. Mr Atkin sent his decision to Mr Argence-Lafon on 27 August 2021. He dealt in detail with Mr Argence-Lafon’s points. In the light of the extent to which the Ken Bau loss had been investigated and reviewed, ‘to suggest that a fraud has been committed is not credible’. He said that while the three contentious objectives were ‘stretching’ and ‘challenging’, they were appropriate for a senior underwriter. He upheld the decision to dismiss Mr Argence-Lafon and added that he agreed with Mr Beaton’s view that there had been a ‘fundamental breach of trust and confidence between you and the Company’s management’. He could not see how Mr Argence-Lafon would ever agree objectives with his manager because Mr Argence-Lafon did not accept that there were any issues with his performance and he could not accept that the PIP had ‘nothing to do with the Ken Bau loss’.
The ET’s conclusions
[34]The ET described its conclusions in paragraphs 95-121. It held that disclosures 1 and 2 made in conversations on 27 November 2019 were protected disclosures for the purposes of the statutory provisions. It held that disclosure 3, made in an email of 4 May 2020, was also a protected disclosure.[35]Disclosures 4 and 5 were made on 14 and 16 September 2020. The ET held that Mr Argence-Lafon still genuinely believed that the insurance claim was fraudulent and not valid (paragraph 101). The real question for the ET was whether that belief and the belief that the Respondent would be in breach of its legal obligations if it paid out on the claim were reasonably held. The ET held that they were not, for the reasons it gave in paragraphs 102 and 103. The ET considered disclosures 6 and 7 (made on 27 April 2021 and 4 May 2021) in paragraphs 104 and 105. It held that Mr Argence-Lafon’s beliefs were not, at that stage, reasonably held, for the same reasons as applied to disclosures 4 and 5. Further, having kept his peace for seven months, Mr Argence-Lafon did not believe that it was in public interest to raise the issues again when he did: the ET held that he raised them in order to derail an imminent performance review.[36]The detriments which Mr Argence-Lafon alleged were, first, that he had been set performance objectives in November 2020 and, second, that he was put on a PIP on 6 May 2021 (paragraph 106). The ET noted that it would not have jurisdiction to consider the first alleged detriment unless it found that Mr Argence-Lafon had been subjected to both detriments on the ground that he had made a protected disclosure (paragraph 106). I should perhaps explain that there are statutory time limits for bringing claims in the ET. A complaint about the first detriment would have been out of time unless (for example) it had been part of a course of conduct which linked it to a complaint which was in time (as the complaint about the other detriments would have been). Two detriments which were alleged to have been imposed because of protected disclosures would very likely to be seen as part of a course of conduct for the purposes of the time limit.[37]Mr Argence-Lafon did not complain about all the objectives set on 20 November 2020, but only about objectives 4, 5 and 6: those concerning risk count, submission count, and premium written. The Respondent argued that Mr Argence-Lafon had agreed to the objectives on 14 December 2021 and that a reasonable worker could not consider that treatment to be a detriment. The ET said it was necessary to consider what happened between 20 November and 14 December 2020. Mr Argence-Lafon was given the objectives orally, without any prior warning, at the meeting on 20 November 2020. He had never been given personal objectives before. ‘The whole process was new to him’. He expressed his reservations at the meeting. When he received the objectives in writing, he objected in writing on 27 November. Mr Argence-Lafon thought that Mr Burton would not change his mind about the objectives, so reluctantly accepted them (paragraph 107).[38]In paragraph 108, the ET considered factors which were relevant to the question whether the imposition of the objectives was a detriment. The targets set were significantly higher than those achieved by Mr Argence-Lafon the previous year. The Respondent argued that they were appropriate for a senior underwriter. If that was so, Mr Argence-Lafon ‘must have been seriously underperforming ever since his employment transferred to the Respondent in April 2018’. But no-one had put him on a performance review in that period, or set targets so that he knew what was expected. There had been ‘very informal’ conversations and general comments, but no-one had raised serious performance concerns with him. He had been an underwriter for 17 years and had never been set targets, and had not been told that he was underperforming. As he had said at the disciplinary hearing, the objectives were not consistent with the way he had been working since he joined the company. A reasonable worker would consider that this was a detriment and the ET concluded that it was.[39]The ET then considered why the Respondent had set objectives 4, 5 and 6. It accepted that there were some concerns about Mr Argence-Lafon’s ‘output’ compared with the performance of other employees in his team. The ET nevertheless considered that the level of the objectives was ‘unfair and unreasonable, and it was unlikely that [Mr Argence-Lafon] would be able to achieve them’, for the reasons given in paragraph 108. Mr Argence-Lafon’s objectives were also different from those which were set for others in the team. They were not given specific targets in any of the three areas.[40]The ET concluded that Mr Argence-Lafon’s managers had no issue with Mr Argence-Lafon’s protected disclosure. They took it seriously and investigated it. But they became frustrated by his unwillingness to accept the experts’ conclusion, and Mr Argence-Lafon was not an expert. By the end of July 2020, Mr Argence-Lafon had spent three months ‘pursuing the matter’. Mr Burton had told Mr Argence-Lafon, when he had instructed an independent expert, that if the expert agreed with the Respondent’s view, he did not want to keep on questioning it (see paragraph 47 of the judgment). Mr Argence-Lafon had ignored that, and had continued to question the assessment. He ‘spent a lot of time and effort in challenging the experts instead of focusing on his job… In the summer of 2020 he had not written or reviewed any risks. In one of the internal investigations, Mr Burton referred to him as having “disappeared” over the summer’ (paragraph 111).[41]The ET’s conclusion was that Mr Argence-Lafon’s protected disclosures ‘played no part in his managers’ decision to set targets at the level at which they did. But their frustration with his conduct after making the protected disclosures ‘played a part in their setting targets at the level at which they did’. That conduct followed the protected disclosures but was ‘quite distinct and separate from it’.[42]In paragraph 115 the ET accepted that the Respondent’s decision to move to a formal PIP review was made because of Mr Argence-Lafon’s performance in the first three months of 2021. Mr Argence-Lafon’s performance against the three objectives was in most cases worse than in the same months in the previous year. That decision was not ‘in any way influenced by’ the protected disclosures.[43]There were two main reasons for Mr Argence-Lafon’s dismissal: his failure to engage in the PIP and the likelihood that he would never do so, and his allegations in his grievance appeal that his managers had been complicit in fraud and that the Respondent had supported them. Mr Beaton believed that that allegation had broken the trust and confidence between Mr Argence-Lafon and the Respondent. Mr Beaton referred to both in the disciplinary meeting, and gave them as the reasons for dismissal in the dismissal letter (paragraph 117). Mr Argence-Lafon was not dismissed for making protected disclosures (for the reasons given in paragraph 118.)[44]The ET then considered, applying the statutory test, whether or not the dismissal was (in layman’s terms) unfair. The ET considered, first, the first reason for Mr Argence-Lafon’s dismissal. Mr Argence-Lafon had made it clear from the outset that he was not prepared to engage with the PIP if the three objectives, with the specific targets set in November 2020, were to be used in that process. The objectives had been looked at in the grievance and in the grievance appeal, but only in the context of whether his managers had imposed them because he had made protected disclosures.[45]Before the decision to dismiss ‘there had been no investigation into whether it was appropriate or reasonable to set those objectives for [Mr Argence-Lafon] in a PIP process in all the circumstances’. The ET found that if there had been an investigation, ‘it would have revealed that [Mr Argence-Lafon] had been an underwriter for that kind of business for nearly 17 years, he had not been given personal objectives like that before and he had not been told that he was underperforming, he had been an employee of the Respondent for 2.5 years, he had not had regular appraisals, he had not been set personal objectives, it had not been made clear to him what targets he was expected to achieve, it had not been drawn to his attention that what he was achieving in terms of risk and submission count and premium income was significantly below what was expected, the targets set expected him immediately to double his premium income every month and to increased his submission and risk count figures that were 7.5 and 5.5 times higher than what he had produced before. The Respondent failed to conduct such investigation as was reasonable and, had it done so, it might have come to a different conclusion’ (paragraph 119).[46]In paragraph 120, the ET considered the procedure which led to Mr Argence-Lafon’s dismissal. When he was invited to the disciplinary hearing, Mr Argence-Lafon was told that its purpose was to consider whether he should be disciplined for failing to engage with the PIP process and to take it seriously. He was not told it was to consider whether there had been a breakdown in trust and confidence as result of what his solicitors had said in the grievance appeal. That point was raised for the first time by Mr Beaton towards the end of the meeting. Mr Argence-Lafon’s response (which the ET had described in paragraph 90) ‘does not indicate that he accepted that that was the case’. He ‘should have been given advance notice’ of that allegation, and that it might lead to his dismissal, and he should have been given an opportunity to prepare his response to it.[47]The ET’s apparently terse conclusion was ‘For the reasons given above we concluded that the dismissal was unfair’ (paragraph 121).
The EAT’s reasoning
[48]The relevant ground of the Respondent’s cross-appeal was ground 2. The EAT considered ground 2 in paragraphs 101-102 of its judgment.[49]The EAT said in paragraph 101 that the ET had ‘analysed the fairness of the dismissal briefly, and only by reference to the initial decision to dismiss’. The ET had not factored the internal appeal into its analysis of the fairness of the dismissal ‘despite having made relatively detailed findings of fact about the appeal’. The EAT acknowledged the Respondent had not referred the EAT to the relevant authorities, such as Taylor v OCS Group Limited [2006] EWCA Civ 702; [2006] ICR 1602 (‘Taylor’), but said that the Respondent had ‘pleaded that the overall process was fair’.[50]It was arguable, the EAT thought, that the appeal could have remedied ‘the failings at the initial stage, particularly the lack of advance notice that the respondent considered that there had been a breakdown of trust and confidence’. Mr Argence-Lafon was ‘arguably able to address this point in the appeal. The appeal outcome included a finding that trust and confidence had broken down and it had become impossible to agree any alternative performance objectives with [Mr Argence-Lafon]. The second ground of appeal succeeds’.[51]In paragraph 122, the EAT reasoned that there was not ‘only one answer to the question whether the dismissal was fair once the appeal is taken into consideration’. The EAT therefore decided to remit the claim to the ET. In the course of its discussion of the mechanics of remittal, the EAT observed that ‘the failure to consider the appeal in the analysis of whether the dismissal was fair appears to be an oversight and the vast majority of the findings of the [ET] have been upheld’.
Mr Argence-Lafon’s arguments on the appeal
[52]In his skeleton argument, Mr Argence-Lafon contended that the ET had made three key findings which it was entitled to make on the evidence. 1. The Respondent did not investigate the disputed objectives (paragraph 119 of the ET’s judgment). 2. Mr Argence-Lafon was given no notice of the disciplinary hearing or of the allegation that he had broken the duty of trust and confidence (paragraphs 89, and 120-121 of the ET’s judgment). 3. The ET expressly considered the internal appeal and the Chair’s reasoning in paragraphs 92-94.[53]He pointed out that when the President of the EAT allowed the Respondent’s cross-appeal to proceed to a hearing, she had acknowledged that paragraphs 92-94 of the ET’s judgment might be the answer, while observing that there was a lack of clarity about the reasoning rather than that the internal appeal had not been considered.[54]The EAT at the full hearing, however, wrongly said that the ET had not considered the internal appeal at all.[55]It also wrongly held that the internal appeal could have remedied the defects identified by the ET. Those conclusions, argued Mr Argence-Lafon, rest on a misreading of the ET’s findings, a mischaracterisation of the underlying documents, and were inconsistent with the assessment of the President on the sift. In particular, the internal appeal could not cure two fundamental procedural defects in the dismissal: the lack of investigation of the disputed objectives and the lack of any notice of the allegation of a fundamental breach of trust and confidence. The ET was entitled to conclude, in accordance with Taylor, that those defects were so fundamental that they could not be cured by an internal appeal.[56]He therefore argued that the EAT erred in law in holding that the ET did not consider the internal appeal and that the appeal could have cured the earlier defects; defects which, as a matter of law, could not have been cured by this internal appeal. In summary, the EAT erred in law in failing to read the ET’s reasons as a whole, mischaracterised the ET’s findings in paragraphs 92-94, in thinking that an appeal could cure fundamental defects like the defects in this case, engaged in its own assessment of the merits of the dismissal, ignored the restraint which applies to the EAT on an appeal, and failed to ask the ET to amplify its reasons before reaching a conclusion that the ET had erred in law.
Discussion
[57]This is an appeal on a point of law from an expert tribunal. Unusually, the ET in this case, was, as the industrial tribunals always used to be, a true ‘industrial jury’ consisting of a legally qualified employment judge and two lay members. The appeal to the EAT is also on a point of law only. The first point about such an appeal is that the appellate court must assume, unless there is an express misdirection, or the clearest evidence that the ET must have misdirected itself (even if there is no express misdirection), that the ET understood, and applied, the relevant law. Mr Argence-Lafon’s two broad claims did not raise difficult points of law. ETs regularly consider claims for unfair dismissal and claims about protected disclosures. There is no express misdirection of law in the judgment.[58]In Taylor this court held that whether an internal appeal was a rehearing or a review does not matter. In considering whether a dismissal has been (in short) ‘fair’ or ‘unfair’, the ET must apply the statutory test, and, in doing so, it must consider the process of dismissal as a whole, including, where relevant, an internal appeal. In paragraph 48 of the leading judgment in that case, Smith LJ quoted a passage from the judgment of Donaldson LJ in Union of Construction and Allied Technicians v Brain [1981] ICR 542 at 550, in which he emphasised that the question whether ‘someone has acted reasonably is always a pure question of fact…the tribunal’s duty is really very plain. It has to look at the question in the round, and without regard to lawyer’s technicalities’. On analysis, Taylor adds nothing to this case. The ET’s job, which it well understood, was to apply the statutory test to the process as a whole. It is not in the least surprising that the ET did not refer to Taylor, as the Respondent was not suggesting, other than allusively in a boilerplate pleading, that the appeal was relevant to the unfair dismissal claim.[59]The second point is that, as Mr Argence-Lafon reminded us, the ET’s reasons must be read as a whole, and need do no more than give reasons which are sufficient to explain to the parties, who know the background, who has won, and why. The ET is not required, in its reasons, to spell out what would be obvious to a person who has read the reasons as a whole, against the background of the pleaded issues (paragraphs 5-7, above) and the agreed list of issues, which the ET recorded in its judgment (paragraph 8, above). Nobody was suggesting before or during the hearing that that was a case in which, if the procedure was considered as a whole, the appeal added anything to the process.[60]The ET found that there were two reasons for Mr Argence-Lafon’s dismissal. Against the background of the facts found by the ET and of the Respondent’s own disciplinary procedure (see the last sentence of paragraph 25, above) it is obvious that while Mr Argence-Lafon was taken by surprise at the dismissal hearing by the allegation of a fundamental breach of trust and confidence, by the time of the appeal, that allegation was no longer a surprise to him. That, it seems to me, is the only respect in which the appeal was potentially relevant to the ‘fairness’ of the dismissal. Again, to put it inaccurately, the appeal might have ‘cured’ the glaring unreasonableness of a decision to dismiss a person for a reason which was sprung on him at the dismissal hearing, when the Respondent’s own procedure required the Respondent to have told him of the allegation, in writing and in advance, and to give him enough time to prepare to deal with it, so as to be able to answer it at the hearing.[61]But that is only one strand of the dismissal. There were two reasons for the dismissal, as the ET found. The second was Mr Argence-Lafon’s performance. The ET found that disclosures 1-3 were protected disclosures. It also found that the setting of the three objectives was a detriment, and that the Respondent, in setting them at the level at which it did, was influenced by its frustration about Mr Argence-Lafon’s conduct after he made the protected disclosures. The ET made a series of other findings about the process and substance of the dismissal for that second reason, and, in particular, about the lack of investigation by the Respondent. I will not repeat them, but simply refer the reader to the findings I have summarised in paragraphs 22 (fourth and last sentences), 23 (penultimate sentence), 26 (last sentence), 33 (fourth sentence), and in paragraphs 37, 38, 39, 41, 42 and 45, above. It is not in any way surprising that the ET held that, in dismissing Mr Argence-Lafon for that reason, the Respondent did not act reasonably, having regard to equity and the substantial merits of the case, and that an investigation might have made a difference. The ET was entitled to make such a finding, acting as an ‘industrial jury’. The internal appeal did not touch, and could not have touched, the sides of that strand of the dismissal, if for no other reason than that there was no further investigation of that strand of the dismissal. It is therefore not at all surprising that, against the full and meticulous findings of fact which the ET made (including findings of fact about the appeal), and the lack of forensic emphasis on the appeal, the ET did not refer to the appeal in its conclusions about unfair dismissal. Not only is that not surprising, it is not, either, an error of law.[62]An old French saying: ‘Un train peut en cacher un autre’ comes to mind. A person near a railway line concentrates on an oncoming train, and starts to cross the track once that train has safely gone, having failed to check whether the first train has hidden the approach of another on the same line. The focus of the litigation was Mr Argence-Lafon’s claim that he had been subjected to detriments because he had made protected disclosures about the Ken Bau loss. The Respondent, and perhaps the EAT, keen to confront that allegation, perhaps forgot to think about the possibility that even if Mr Argence-Lafon was not dismissed for making protected disclosures, he might nevertheless have been unfairly dismissed. The ET, on the other hand, was looking out for the second train. The ET saw the second train, and to abandon that metaphor, dealt appropriately, and without legal error, with the claim for ordinary unfair dismissal.
Conclusion
[63]For these reasons, I would allow Mr Argence-Lafon’s appeal.[64]I agree that this appeal should be allowed for the reasons given by Elisabeth Laing LJ. I endorse her praise for the way in which Mr Argence-Lafon conducted the appeal, which he did with clarity and precision.