"8. The Claimant complained that the Respondents had failed to comply with a duty to make reasonable adjustments (section 20 Equality Act 2010 [EA]) and that they had treated him unfavourably because of something arising in consequence of his disability (section 15 EA). 9. The Respondent conceded that the Claimant was disabled within the meaning of Section 6 and Schedule 1 to the EA. The Respondent had been aware that the Claimant was a diabetic. In August 2013, around the start of the disciplinary proceedings the Respondent became aware that he had a meningioma otherwise known as a brain tumour. 10. The complaints relate to the Respondent's decision to proceed with the internal disciplinary proceedings when it did; to conduct the disciplinary and appeal hearings according to its procedures and whether or not those decisions were discriminatory and/or represented a failure to make reasonable adjustments to the particular procedures involved."
"43. The Respondent has the burden of proving the reason for dismissal and that it is a potentially fair one. The Respondent submitted that the Claimant was dismissed for a reason related to his conduct and in the alternative; the matters relied upon also fell into the SOSR (some other substantial reason) category. 44. The Claimant did not accept the Respondent's reasons and submitted that the decision-makers' conclusion that there was a "strong appearance of impropriety" was due to the mere fact of the HMRC investigation into his personal affairs and that this was therefore not a potentially fair reason for dismissal."
"48. The Claimant submitted that the following factors bore on the reasonableness of the Respondent's decision. That the Respondent's attempt to investigate was an utter abject failure as there was no designated investigation officer and no investigation report that recommended disciplinary action against him. He questioned where the Respondent had obtained the evidence it relied on and what attempts had been made to consider whether any exculpatory evidence existed. He considered that the decision makers did not have the benefit of evidence from anyone with operational experience in considering the information before them and that the Respondent had failed to engage in dialogue with him about the transactions beforehand and had therefore come to incorrect and inadmissible conclusions about them in the process. The Claimant submitted that the case of AvB[2003] IRLR 405 supported his submission as it stated that the person charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. This Tribunal was also referred to the case of Shrestha v Genesis Housing Association Ltd[2015] EWCA Civ 94 in which the Court of Appeal confirmed that it was too narrow an approach to say that the employer has to investigate each line of defence unless it is manifestly false or unarguable. "
" It is of the highest importance that flexibility should be retained and ultimately, the question for the employer is whether, in the particular case, dismissal is a reasonable response to the misconduct proved. " "
"Responsibility to each other" it stated: "
"Electronic Communications" on page 1671 it stated that: "
"Employee conflicts of interest" it stated: "
"Outside business interests" it stated: "… you may not engage in other outside business activities including not-for-profit activities if a real or perceived conflict of interest exists or could exist. You are also required to comply with any applicable laws, regulations and Citi business unit policies. You are responsible for identifying and raising any such issue or relationship that may pose an apparent or potential conflict of interest and to evaluate with your supervisor and your compliance officer the possible conflicts that could result."
"Personal business dealings" it stated: "
"195. We find that through his written submissions to Mr Bandeen and the attached supporting documents the Claimant took the opportunity to fully explain the transactions and to put them in context before any decision was made. 196. At the time he made written representations it was not part of his defence that there were other employees using the staff transfer system in the way that he had. His defence was that there was a legitimate explanation for what he had done. 197. Having made sure that he understood the transactions and the Claimant's explanations, Mr Bandeen then considered them in the light of the disciplinary charges that the Claimant faced. Firstly, he considered whether they involved the improper use of the Respondent's transaction systems, staff and resources. 198. He concluded that the transactions were purely personal and were totally unrelated to the Claimant's work for the Respondent. Also, that the Claimant had not sought permission from a more senior manager when using the staff transfer process rather than that of a more junior employee. Although Mr Tarran was senior he was junior to the Claimant. 199. We spent a lot of time in the Hearing discussing the section of the Code of Conduct that referred to personal business dealings. Mr Bandeen considered that the section did not give the Claimant permission to use the staff transfer process to transfer the UVT's funds. In his live evidence, he stated that he would struggle to think of a transaction more non-standard than for example, transaction 8 where the Claimant had sent a UK charity's funds to a UK bank, transferred it to Pakistan, then out through a personal account, transferred it into another currency and finally out to another charity based in Pakistan. He believed that in accordance with this section of the Code the Claimant should have sought permission from a manager senior to himself before using Citi's systems to make these transactions. He concluded that they were not personal business dealings, were non-standard and were contrary to the Code of Conduct and the Handbook. The Claimant had used the Respondent's resources - both systems and staff (i.e. Mr Basu in transaction 3) to engage in financial transactions that had a strong appearance of impropriety. 200. Mr Bandeen considered the sections of the Code of Conduct that Ms Wiggan referred to in her email to the Claimant's solicitor on 2 September and which the Claimant is likely to have been familiar with having been a long-standing member of staff, Code staff and quite senior staff. He decided that the Claimant could not have considered his use of the Respondent's systems as outlined above to be approved or authorised by the Respondent, especially as he had not sought permission from a senior manager for the non-standard use [of] the staff transfer system in the way that he had. He decided that the way in which the Claimant had conducted transactions 1, 3 and 8 was also in breach of the Employee Handbook as he used Citi's systems for personal use in breach of its policies and procedures and he had not kept the usage to a minimum. 201. Mr Bandeen concluded that the Claimant's claim that he used the staff transfer process to transfer the UVT's money to create an audit trail to be implausible and counterintuitive. Instead, he considered that the way in which the transactions had been arranged made the process opaque and unnecessarily complicated. That is what he understood by the phrase 'complex and multi-layered'. For example, in transaction 1, the Claimant could have had the funds transferred directly from Lloyds TSB to Schroder Saloman Smith Barney New York to satisfy the capital call. In transaction 3 he could have made a cheque out to Citibank NA and paid the credit cards off directly and the cheque in transaction 8 could have been made payable to Fakir Trust. Instead, the way that the Claimant set up the transactions involved many stages and did not give a clear 'line of sight' to the Respondent of the ultimate beneficiary or to Lloyds TSB, which was the UVT's bank. 202. It was not part of Mr Bandeen's function as the business reviewer to confirm whether the distribution of the UVT funds in this way actually breached the relevant charity, tax law or regulations. In the Hearing the Claimant accused the Respondent of seeking to do HMRC's job in the decisions it made in this disciplinary process. We find that Mr Bandeen was careful not to do so. He quite clearly stated in his decision letter that he was not in a position to make a finding as to whether the transactions contravened those laws. 203. It was within his remit however, to determine whether the Claimant had made improper use of the Respondent's systems in conducting these transactions and he confined his decision to that. He considered that it was also inappropriate for the Claimant to have involved Mr Basu in the settlement of Mr Ali's personal debts. He concluded from the emails that the Claimant had used his position and influence to pressure Mr Basu to obtain settlement figures and to get the best deal possible for his nephew. 204. Mr Bandeen concluded that the transactions had the strong appearance of impropriety. Although the Claimant provided documents from Mr Malida and Mr White confirming that there was nothing untoward with the transactions, Mr Bandeen concluded that those statements were from the perspective of the charity and its trustees. The loan of£15,000 to meet the cash call had been subsequently repaid. The payment to clear Mr Ali's credit cards was apparently within the objects of the charity and the other Trustee had approved the payment to the Fakir Trust. However, once again, Mr Bandeen was only concerned with the Claimant's use of Citi's systems. He concluded that the numerous steps taken by the Claimant to complete these transactions when they did not appear to be necessary could be seen as designed to conceal the source of the funds. He concluded that there was a lack of transparency. 205. He considered whether transactions 1, 3 and 8 were likely to bring the Respondent's name in disrepute. In this regard he was conscious of the fact that the Claimant was Code Staff as well as being the Global Head of TTS (Operations). The Respondent did not have to wait for an enquiry from the regulator before considering this matter. The Respondent was aware that the Prudential Regulation Authority and the Financial Conduct Authority have become increasingly focused on ensuring that firms are promoting a culture of good behaviour, particularly amongst its senior decision makers, such as the Claimant. He concluded that in those circumstances, the Claimant's involvement in transactions with the strong appearance of impropriety such as transactions 1, 3 and 8 was likely to create embarrassment for the Respondent and did carry with it the real risk of bringing the Respondent's name into disrepute. 206. Mr Bandeen understood and considered fully the Claimant's explanations and found them to be unsatisfactory. His decision was that the Claimant had used the Respondent's facilities for his personal benefit and that of his family and that such use had not been properly authorised. The Claimant's use of the Respondent's facilities went beyond the use envisaged by the 'Personal Business Dealings' section of the Code of Conduct. He decided also that by using the facilities in this way he had involved the Respondent in his personal dealings, in transactions that appeared unusual and which could not be considered a legitimate part of the Claimant's duties, or that of his colleagues nor a reasonable use of business resources. The Claimant's conduct looked at as a whole was at odds with the relevant sections of the Code of Conduct and the Employee Handbook. Mr Bandeen's decision was that the Claimant had demonstrated poor judgment from a Managing Director in a trusted position within the bank. 207. Mr Bandeen stood by his decision in the Tribunal Hearing. He considered that the Code of Conduct was not a set of narrow rules to be looked at in isolation but a set of broad principles which the Respondent had a reasonable expectation that the Claimant in his very senior position would uphold and assist in ensuring that others did so too. 208. We find that it would be reasonable to conclude that transfer of the charity's funds where the charity is not a client of the Bank would be a non-standard transaction. The fact that the Claimant has obtained approval to be a trustee of the charity by the Respondent did not give him permission or authorisation to use its resources for the charity. The Claimant was unable to produce any documentation from the Respondent that gave him authority to use its resources for the UVT's activities in this way or at all. The Respondent approved his personal involvement in the charity but it had not approved his use of its systems for the charity's purposes or benefit. The two are very different. … 212. We find that although the Respondent did not specifically set out in its charges that it was concerned that the Claimant was using its systems to conduct transactions for a third party or that the UVT was benefitting from its systems or that neither it nor Lloyds TSB would not have had line of sight of the transactions; all of that was encompassed in the main charge that the Claimant's conduct of these transactions were an improper use of its transaction systems, staff and resources to engage in financial transactions that were either improper or had the strong appearance of impropriety. 213. Mr Bandeen decided that this all amounted to gross misconduct and was a serious breach of the Claimant's employment obligations, duties and responsibilities. Mr Bandeen considered that the Claimant's conduct was sufficiently inappropriate to warrant summary dismissal. In coming to that decision, he considered the Claimant's seniority and responsibility as Global Head of TTS (Operations) and the level of influence that gave him over a large number of the Respondent's employees. He considered that the Claimant was Code Staff under the PRA and the FCA Remuneration Code. He also considered the Claimant's extensive length of service with the Respondent. It was his decision that the Claimant's length of service, seniority and experience should have made him aware of the potential for these transactions to appear improper and that in effect, he should have known better. His long service did not detract from the poor judgment and conduct he had exhibited in the way in which he conducted these transactions. Mr Bandeen stated that over his career spanning almost thirty years he had never encountered comparable misconduct from someone of the Claimant's seniority and experience. The Claimant was dismissed on 17 September. … 241. On 25 October the Claimant's solicitor wrote to the Respondent to set out his representations for the appeal hearing. In the representations the Claimant stated that the Respondent had unreasonably allowed itself to be influenced by the fact of an HMRC investigation and that this had coloured its view. In addressing each of the transactions, the Claimant set out the following new information: Transaction 1 - The money to meet the capital call needed to be in New York within 24 hours and the Claimant did not have the cash available to transfer within the time scale. Transactions 3 - This was a donation by the UVT to Mr Ali. It had earlier been said that it had not been a [gift] to him. Transaction 8 - That transferring funds from the UVT to the Fakir Trust in this way ensured that the Claimant would receive a foreign exchange receipt, giving him a certificate and reference number, which was essential for the Charity Commission reviews both in the UK and Pakistan. He stated that this is what he meant by 'creating an audit trail'. Pakistan is an exchange regulated country and therefore information in relation to any money transferred into the country had to be sent to the State Bank of Pakistan which is why a foreign exchange receipt was needed. 242. It was also stated in the Claimant's submissions that the Respondent did not understand the processes and that the Claimant and Mr White would have been willing to explain those to the Respondent had he been given an opportunity to do so. The Claimant believed that the Respondent had made a hysterical response to those transactions by finding that they potentially placed the bank's reputation as a provider of financial services into question. The Claimant then gave details of Employee 11's sole use of the staff transfer system. Employee 11 had asked the Claimant to transfer funds from his personal Citibank account in the UK to a developer in Columbia to purchase a flat on behalf of his children's nanny. The Claimant agreed and the transfer occurred. Employee 11 was senior to the Claimant and was a Citibank Gold Customer. 243. The Claimant referred to 17 colleagues in London who had used the system and to other colleagues based in Dublin who had also done so. All members of staff referred to had been or were within the TTS (Operations) Department when they did the transactions. The Claimant asked whether any of those individuals had been subjected to disciplinary action. … 253. On 25 October the Claimant's solicitors wrote to the Respondent sending detailed submissions in relation to all the allegations and all of Mr Bandeen's conclusions in support of his appeal. The Claimant's solicitors also arranged the appendices and representations to be couriered over to the Respondent on the 30 October. Included in the documents were statements from Mobi Ajetunmobi and Steve Meadows who had both previously worked for the Respondent and provided character references for the Claimant. It is likely that Mr Staley read all those documents before he conducted the hearing on the following day. 254. Debbie Garlick of the Respondent's ER team attended [sic] Mr Staley on31 October 2013 , which was the day of the appeal. They waited for the Claimant and his chosen companion before starting the hearing. An independent note-taker was also present. The Claimant did not attend the hearing. 255. Mr Staley had prepared a list of questions that he was going to go through with the Claimant. Those related to the charges that the Claimant faced. Mr Staley was conscious that as appeal hearing manager he had to decide whether the disciplinary process followed by Derek Bandeen had been procedurally fair and appropriate, whether he agreed with the decision that the Claimant's actions constituted gross misconduct and whether the decision to terminate the Claimant's employment had been reasonable. 256. Mr Staley would have been aware of the Claimant's long service with the Respondent and therefore the impact that dismissal would have on him. We find that he, as Mr Bandeen before him, took his role seriously and considered the documentation and the Claimant's representations fully before coming to his decision. In his evidence before the Tribunal he showed that he was familiar with the documentation and with the allegations against the Claimant. 257. After careful consideration of the Claimant's grounds of appeal on the day, it was Mr Staley's decision to confirm Mr Bandeen's decision to terminate the Claimant's employment. Mr Staley's decision was that these were transactions that were complex, multi-layered and involved a third party entity and were not in fact personal transactions. In his live evidence he confirmed that what concerned him was the Claimant's use of the Respondent's systems to carry out transactions on behalf of a charity that was neither one of its employees or a client. He was also concerned about the Claimant's use of Mr Basu to discharge Mr Ali's credit card debt, which he considered to be a situation rife with conflict of interest. The core issue for his [sic] was the Claimant's use of the Respondent's internal systems for non-personal business dealings. 258. Mr Staley wrote to the Claimant on 25 November to set out in detail his decision on the Claimant's appeal. In his letter Mr Staley addressed each of the Claimant's appeal points and gave his conclusions. It was his conclusion that contrary to the Claimant's assertions that the transactions were clear to all concerned and were not multi-layered of [sic] complex; the way in which they were organised was not transparent and he confirmed his conclusion that they were multi-layered, complex and prevented the charity's bank - Lloyds TSB - from having end to end sight of the transactions as they ought to have been able to do. He therefore concluded that Mr Bandeen's conclusion on that allegation had been reasonable in the circumstances. 259. He considered the Claimant's claim that he was of good character and that he had an unblemished 40-year work record but noted that Mr Bandeen had considered that against the [Claimant's] position within the Bank, his seniority and that he was Code staff, which meant that the Respondent had a high expectation of him. Mr Staley considered the comparators that the Claimant referred to in his appeal documents. The investigations were still in progress at the time. However, he was satisfied that from the information available, there were no other staff users who had used the process for transferring or managing a third party charity's money. He was informed by Ms King about what the Respondent had by that time found out about Employee 11's single use of the system and focussed on that as he was CEO of the Respondent's Transaction Services and Global Head of the Respondent's Treasury and Trade Solutions and was therefore quite senior. The Respondent had duly investigated his single use of the Staff Transfer system and found that he had transferred funds in a straightforward manner. The Respondent was able to see the end recipient. Mr Staley concluded that this made it sufficiently different from the Claimant's conduct as to not be comparable. By the time of the Hearing the Respondent knew more about transactions carried out using the staff transfer system by other members of staff, as set out above. The transactions conducted by Employees 3, 11, 14 and 16 were put to Mr Staley during his cross-examination. Mr Staley confirmed that although they had all used the staff transfer process, the ways in which they had done so had been different from the Claimant's use. The Claimant had used it to transfer third party charitable funds, he had done so in a way that made it difficult for the Respondent to see where the funds came from or where they were going and he had not got permission from the Respondent to use the process in that way. The Claimant's transactions were of substantially greater sums of money and the Claimant was of greater seniority than all of the other identified users - apart from Employee 11 - so that more would and should be expected from him in maintaining and promoting good practice within the Bank. 260. Mr Staley considered the Claimant's ill health and concluded that the Respondent had made appropriate adjustments to the appeal process to enable him to have a fair hearing. Mr Staley confirmed that the appeal was refused and the Claimant's dismissal was confirmed."
"281. In summary, it is our judgment that the Respondent applied three of the alleged PCP's in this case. Firstly, the Respondent refused the Claimant's request to be accompanied by Mr Meadows and/or Mr White and insisted that only a trade union official or a work colleague could accompany him to the disciplinary meetings. Secondly, the Respondent sent the Claimant all the documents that they sought to rely on in the disciplinary process and in his case that happened to be a lot of documents. Thirdly, it is also correct and the Respondent conceded that it was likely that it applied a PCP that once disciplinary proceedings are started they would usually seek to bring them to a conclusion with reasonable dispatch while keeping consistent with the individual circumstances of the employee and with any advice obtained from Occupational Health. This last one is an amalgam of 2.3.3, 2.3.4, and 2.3.5 above. 282. The Tribunal then went on to consider whether the application of these PCP's put the Claimant at a substantial disadvantage - in comparison with persons who were not disabled. Did the application of the PCP's substantially disadvantage the Claimant in relation to his ability to be able to represent himself properly and defend himself in relation to the disciplinary charges brought against him in this process? … 291. The Claimant was given the right to be accompanied. But the Respondent refused to make the adjustment he wanted to allow him to bring an external companion, which was outside of their policy. … 295. In our judgment it was not the application of this PCP that resulted in the Claimant being unable to persuade the Respondent of his case in relation to the allegations. The Claimant was able to provide a full account of the events relating to the allegations. He gave the same details in relation to the three transactions in his written submissions as he did in our Hearing. His defence to the allegations have not altered. The Respondent did not accept the Claimant's explanation or his justification for the three transactions. Mr Bandeen and Mr Staley rejected his explanations as being unsatisfactory given his status within the Bank, given the Code of Conduct and the Handbook and given the details of those transactions. It was not that they were unclear of his explanations or that they did not understand his defence. They simply did not accept them. … 298. Although the Claimant was a person with a brain tumour who was suffering from tremors, poor concentration, memory loss etc at the time of the disciplinary hearing he was able to give his solicitor detailed instructions so that they could respond to the Respondent on his behalf. He was also, at the same time, able to give his criminal solicitor instructions on the HMRC matter and address issues directly with the HMRC. He could have asked a colleague to attend with him. He did not do so and chose Mr Meadows because he thought that he would be able to outrank Mr Staley. There was no evidence that anyone refused to attend for fear of retribution. And no evidence that anyone needed reassurance. 299. In our judgment, the decision to proceed in writing did not disadvantage the Claimant. It allowed him the opportunity to give his explanations of the transactions in detail. His solicitors - on his behalf - made lengthy submissions on each transactions [sic], which he may not have had the chance to do in a meeting. He was able to provide all documentation that he had in support of his case. He was able to consider and review the written submissions before they were sent out. Unlike most employees, he had solicitors draft his response to disciplinary charges for him. … 302. It would not have been reasonable to postpone the disciplinary process until the HMRC investigation had been completed, as that had still not completed some years later at the time of this Hearing. It would not have been reasonable to postpone it until his brain surgery, as the Claimant did not recover or become sufficiently fit and able to participate in the Employment Tribunal process until 2015. 303. It is our judgment that the application of the 3 PCP's did not result in substantial disadvantage to the Claimant. The duty to make reasonable adjustments did not arise in this case. However, the Respondent did make some adjustments to the disciplinary process as set out above and those adjustments benefitted the Claimant in making his defence to the allegations of misconduct. It is our judgment that at the end of the process, the Respondent made the decision to dismiss him and his appeal against dismissal failed because his defence and explanations for his conduct were not accepted and not because of the effect of the application of any PCP's on him. … 305. In our judgment, the Claimant felt unable to attend the disciplinary and appeal hearings. However, we do not have evidence that he was unable to do so. After her assessment of him, the experienced Occupational Health adviser confirmed that the Claimant would be able to properly participate in the disciplinary process by making written submissions. She was aware that the Claimant wanted to attend in person but concluded that if he were suffering from memory loss and poor concentration, it would assist him to be able to make written representations. In his reports, Dr Dexter advised that the Claimant should refrain from work, he also confirmed that he was under stress and set out the ways in which his tumour affected him but did not comment on his ability to attend disciplinary and appeal hearings. Dr Farmer's letter confirmed the stress that the Claimant was under. In his report in August Dr Farmer confirmed the deterioration of what was a previously stable situation and that the Claimant's health was at a precarious state. He did not refer to the Claimant's ability to attend his disciplinary and appeal hearings. It is our judgment that it is more likely that the Claimant chose not to attend both hearings. 306. We did not have sufficient evidence to conclude that his absence from those meetings was due to his disability or was a matter arising from his disability. The Claimant was proposing to attend the appeal hearing - if he was allowed the companion of his choice - which meant that he could attend the meeting. He had attended a long meeting with HMRC on 4 September and had earlier attended the meeting with Mr Constantine and Mr Woodward on 8 July. He was a disabled person but that does not mean that his decision not to attend the disciplinary and appeal meetings was something that arose in consequence of his disability. … 308. In our judgment, conducting the disciplinary procedure in writing was not to the Claimant's detriment. As the Occupational Health Adviser confirmed, it would have been to his benefit as he was able to have it done by solicitors, which was unusual and meant that his explanations were put in the best possible way from his point of view. Proceeding in writing gave him the opportunity to ensure that everything he wanted to say in explanation was included and that all his documents were produced and attached. He was able to explain in detail how he considered that the three transactions were in keeping with his duties, were within the correct use of the Respondent's staff transfer process and within the remit of his employment. … 311. In our judgment, the Claimant's disability did not affect his ability to present his case or to articulate his defence. 312. We did not find facts from which we could conclude that that [sic] there was something that arose from the Claimant's disability that caused the Claimant to be treated less favourably by the Respondent. In our judgment, there is no 'something' arising in consequence of his disability that could constitute a causative link between his disability and the treatment complained of. The Claimant was dismissed and his appeal was not upheld. It is our judgment that those outcomes did not happen in consequence of anything that occurred as a result of his ability. 313. The Claimant failed to make a prima facie case of discrimination arising from disability and the burden of proof does not shift to the Respondent. … 315. The first question for the Tribunal is - what was the reason for the Claimant's dismissal? In our judgment the Claimant was dismissed because of misconduct or Some Other Substantial Reason (SOSR). … 318. The allegations that the Claimant faced at the disciplinary hearing was [sic] set out in the disciplinary invitation letter as follows: that the three transactions referred to demonstrated that the Claimant had used the Respondent's transaction systems, staff and resources to engage in financial transactions which were either improper or have the strong appearance of impropriety. The letter then went on to give some specifics of the ways in which the transactions were improper or had the appearance of impropriety; such as being multi-layered. At the end of the process, Mr Bandeen came to the conclusion from the evidence before him - which included a consideration of the documents sent to him by the Claimant - that the charges had been proven and that the Claimant had committed gross misconduct. He did not accept that the Claimant had used the staff transfer process to create an audit trail but that the complete opposite was true and that the Claimant had used the process in an attempt to conceal the details of the beneficiaries from the UVT's bankers. Mr Bandeen considered that the Claimant had used the Respondent's systems i.e. the staff transfer process, its banking facilities; its staff - i.e. Mr Basu and Mr Tarran; to make transfers that were nothing to do with his work, were not personal to him and were inappropriate. That is encompassed in the statement that they were either improper of had the appearance of impropriety. The UVT was not one of the Respondent's clients. The Claimant and the UVT are two separate entities. It does not matter that he was the sole or majority donor to the charity. It was still a separate legal entity. The Respondent was not the UVT's Bank. The transactions were non-standard and not covered by any of the Respondent's policies or the Code of Practice. The fact that the Claimant had permission to be a trustee of the UVT did not mean that he had permission to use the Bank's facilities to transfer its money around the world. It is for those reasons that the Claimant was dismissed. 319. It is our judgment that Mr Bandeen and Mr Staley believed that the details of the 3 transactions demonstrated that the Claimant had shown poor judgment in the way he had used the Respondent's transaction systems, staff and resources. Mr Bandeen considered that the conduct was serious enough to be classed as gross misconduct and that an appropriate sanction was summary dismissal. Mr Staley considered the Claimant's appeal but found no reason to overturn that decision. It is our judgment that both Mr Bandeen and Mr Staley had a genuine belief that the Claimant had committed gross misconduct warranting summary dismissal. They made their decisions independently and we had no evidence from which we could conclude that they had been pre-determined. Both struck us as conscientious managers who took their roles seriously and were senior enough not to be influenced by anyone else. … 321. The employer needs to have a genuine and reasonable belief that has been reasonably tested through an investigation. What is required here is a reasonable investigation and not an investigation to the standard of criminal proceedings. We also bear in mind the law on investigations most recently referred to in Shrestha v Genesis quotes above which advises a Tribunal to look at the investigation as a whole when assessing the question of reasonableness. 322. Did the Respondent conduct a reasonable investigation? In [our] judgment, the Respondent did do so. Mr Woodward and HR held a long interview with the Claimant quite early in the process, on 8 July. That was part of a global regulatory investigation that included the Claimant. In that meeting the Claimant attempted to explain the staff transfer process. The Claimant had another opportunity to do so in correspondence with Mr Woodward. In his emails on 9 July Mr Woodward set out clearly the transactions that the Respondent was focussed on. He was not just being asked to explain a process. He was asked specific questions on transactions involving cheques drawn on the UVT's account, held within Citi's accounts with the relevant funds transferred to beneficiaries in India and/or Pakistan via Citi branches in those countries. Mr Woodward asked the Claimant how many cheques there were and details of the amounts involved. He clearly outlined the questions that he wanted the Claimant to answer. The Claimant responded on 10 July giving the information requested. The Claimant could have been in no doubt that the Respondent was conducting an investigation into these matters. 323. The Claimant did not have a formal investigation meeting with CSIS as Mr Basu and Mr Ghandi did. However, he was asked detailed questions such as was asked of Messrs Ghandi and Basu in their meetings and had an opportunity to answer them in writing. Once he was suspended his solicitors took over correspondence with the Respondent. They asked many questions on his behalf. They raised queries about the process, the allegations, the timing of proceedings and everything else. The Claimant had ample opportunity to ask questions, to articulate his defence to the allegations and to understand and formulate considered answers to the charges he faced. He was able to do so well before the disciplinary hearing. It is likely that he was able to attend the disciplinary hearing and reinforce his answers but chose not to do so. Nevertheless, his case was articulated well and strongly put but [sic] his solicitors. … 328. It is our judgment that the Respondent had conducted a reasonable investigation. Mr Bandeen had sufficient evidence before him on which to base his belief that the Claimant had committed gross misconduct in that he had conducted transactions using the Respondent's process, staff and resources which were improper or had the strong appearance of impropriety. The transactions had not been personal to the Claimant, they had been contrary to the Code of Conduct and they had on behalf of a separate legal entity i.e. the UVT. The UVT enjoyed the use of the Respondent's facilities without undergoing the usual checks, which included anti-money laundering (AML) checks. Whether or not Lloyds could also do so was not the point. Since the Respondent's processes were being used - it should have been given the opportunity to decide whether it was happy to rely on Lloyds' checks or preferred to do its own. The stages of each of the three transactions set out in the findings above show that in each of them, the Respondent's systems would not have picked up that the funds were being transferred from the UVT as the funds were put in the Respondent's Nostro Account and then transferred on. When one of the Claimant's transactions did throw up a concern, the Claimant's response to the AML query caused even more concern and did not serve to reassure the Respondent. All of this was clear from the documents and was not disputed by the Claimant in his submissions to the disciplinary hearing. His case was that these transactions were within the use of the staff transfer process. The Respondent did not agree. The Respondent concluded at the end of the process that the Claimant had used its resources, staff and systems to engage in financial transactions which were either improper or had the strong appearance of impropriety. It is our judgment that the Respondent had sufficient evidence from its investigation on which to base [its] disagreement with the Claimant's interpretation of his actions and come to that decision. Mr Staley confirmed the Claimant's dismissal and agreed with Mr Bandeen that the Claimant had committed gross misconduct. … 336. When considering the appropriate sanction, Mr Bandeen had in his mind the Claimant's gross misconduct, his length of service, and his status within the organisation and in particular his position as Code staff. In our judgment those were legitimate and proper considerations to take into account when determining suitable sanction. It was open to Mr Bandeen to conclude that the Claimant's length of service and his clean disciplinary record were outweighed by the poor judgment and poor conduct exhibited by him and the embarrassment and reputational risk it posed for the Respondent. The Claimant's misuse of the transfer process was unacceptable to the Respondent. 337. In those circumstances, it was not outwith the band of reasonable responses for the Respondent to terminate the Claimant's contract on the grounds of his gross misconduct. The dismissal is fair in the circumstances."
"60. Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. … 80. Of course the touchstone is always reasonableness. The recognition that the standard of reasonableness is going to depend upon the state of the case against an employee is found in the decision of the Employment Appeal Tribunal, Wood J giving the judgment, in the case of ILEA & Gravett[1988] IRLR 497 . In the course of his decision Wood J said this: '… in one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end so the amount of inquiry and investigation, including questioning of the employee which may be required, is likely to increase.' "
"2.3.2. The decision/action taken by the Respondents when applying these provisions, by:- 2.3.2.1. Not agreeing to a further postponement of the disciplinary hearing on medical grounds; 2.3.2.2. Insisting that the disciplinary and/or appeal hearings take place "in writing" in the Claimant's absence; and/or 2.3.2.3. Not allowing the Claimant to be accompanied by Mr Meadows and/or Mr White at the appeal hearing on the basis that neither was a colleague or trade union representative. 2.3.3. Not agreeing reasonable delays to the disciplinary process to enable employees to attend disciplinary and/or appeal meetings; 2.3.4. Proceeding to a disciplinary hearing without reference to external proceedings concurrently affecting employees (in the Claimant's case, the HMRC timetable/ proceedings)[;] 2.3.5. Agreeing to a number of short piecemeal postponements to the disciplinary process for employees rather than one substantial period of postponement; 2.3.6. Requiring that employees consider a large amount of documentary material within a short space of time prior to disciplinary hearings; 2.3.7. Not explaining to employees before disciplinary hearings:- 2.3.7.1. The precise provisions of the code/handbook which are alleged to have been breached. 2.3.7.2. Detailed reasons as to why the Respondents consider the employee has committed an act of misconduct. 2.3.8. Not providing further particulars of disciplinary allegations and/or disciplinary findings to employees when dealing with disciplinary and/or appeal hearings; 2.3.9. Not asking any questions of employees prior to the disciplinary hearing; 2.3.10. Forming disciplinary allegations without holding an investigatory meeting with the employee; 2.3.11. Articulating disciplinary decisions by way of generic findings (in the Claimant's case finding the transactions to be multi-layered and complex and with the appearance of impropriety) and/or not providing further information to employees as to the reasons for the decision."
"266. The Claimant relied on 11 possible Provisions, Criterion or Practices (PCP's[)], which are set out above. The Tribunal firstly considered whether they were all PCP's. We use the numbering from above. 267. 2.3.1 [-] These potential PCP's relate to the application of the Respondent's disciplinary procedures to the Claimant. We agree that the Respondent applied its disciplinary procedures equally to all staff and in that way it is a PCP. In relation to the specific aspects relied [on] by the Claimant the Tribunal's judgment is as follows:- 268. 2.3.1.1 - The Respondent was flexible in its arrangements for the disciplinary hearing and was in constant communication with the Claimant and his representative to make suitable arrangements for him to be able to participate in the disciplinary process. The Respondent did not insist that the Claimant come to the first arranged meeting or that the original charges should be kept. Rather, the Respondent showed flexibility and did not apply a set, rigid procedure to the Claimant. There was no PCP applied here. 269. 2.3.1.2 - The Respondent did apply a criterion in relation to who was allowed to accompany an employee to a disciplinary or appeal hearing. The Respondent insisted that such a companion had to be either a fellow worker or a trade union official. It is also our judgment that the Respondent considered the Claimant's request to be accompanied by someone to be outside that criterion and refused it on particular grounds. We will address this more fully below. The Respondent did apply this PCP to the Claimant. 270. 2.3.2.1 - The Tribunal does not agree that the Respondent had a particular practice in relation to the timing of the disciplinary hearing. The policy at 2503 does not set a time limit within which the hearing should happen. There was no set policy or practice in relation to the number of postponements or the period of time for which a disciplinary hearing could be postponed. The postponements that the Respondent agreed to the procedure applied in the Claimant's case were all fact specific. 271. 2.3.2.2 - It is this Tribunal's judgment that the Respondent did not have a policy or practice that disciplinary or appeal hearings take place in writing. That is what was happened [sic] in this case but there was no evidence on which we could make a finding that the Respondent applied such a practice to persons who were not disabled. The Respondent's practice was for the disciplinary hearing to be conducted in person. It was only after the Claimant's solicitor stated that he could not attend the set dates and after further correspondence which we have set out above in the findings, that the arrangement was made for him to make representations in writing. This was not a PCP but was the procedure applied in this case because of the particular circumstances. 272. 2.3.2.3 - The Respondent did not allow the Claimant to be accompanied by Mr Meadows or Mr White at the appeal hearing. This was because neither of those men were a colleague or a trade union official. That was a PCP applied to the Claimant. 273. 2.3.3, 2.3.4 and 2.3.5 are facts that occurred in this case. We had no evidence from which we could conclude that these were PCP's applied to persons who were not disabled or to anyone else. It is our judgment that they were not practices, criterion or procedures applied by the Respondent. It is our judgment that the Respondent may well wait for criminal or other proceedings to be completed in other cases and the amount of material that an employee has to consider before a disciplinary hearing or the number of postponements given in each process would be different in every case. These were therefore not PCP's. 274. 2.3.6 - It is this Tribunal's judgment that the Respondent sent the Claimant all the relevant documentation that was going to be considered in his disciplinary hearing, as they were duly bound to do. The Claimant was entitled to have all the relevant information so that he could be aware of the charges that he faced, the facts that arose out [of] the investigation and the grounds on which the allegations he faced were based. It is likely that this is the Respondent's practice when conducting internal disciplinary proceedings. This was a PCP. 275. 2.3.7 - It is possible that the Respondent has a practice of not identifying specific parts of the Code of Conduct that the employee is alleged to have breached, at the beginning of a disciplinary process procedure. The would give it opportunity to fine tune the charge as the investigation continues. The Respondent had a reasonable expectation that the Claimant was familiar with the Code of Conduct and was active in getting other more junior staff to abide by its spirit and its terms. He was Code staff. It was reasonable for the Respondent to expect the Claimant to be vigilant about it. We had no evidence of the time in their disciplinary processes that Mr Basu or Mr Ghandi were given details of the specific parts of the Code of Conduct that they were alleged to have breached. Before the disciplinary hearing the Claimant was given details of the specific parts of the Code that it was alleged that he had breached. There was no PCP applied here. 276. Also, in this case the Respondent did give the Claimant detailed reasons why they considered that he had committed misconduct. Paragraph 1 of the invitation letter set out the alleged misconduct and the Claimant was given 200 pages of evidence that had been gathered in the investigation. There was no practice applied in this case of failing to explain the reasons why he was considered to have committed misconduct, before the disciplinary hearing. The Claimant was given detailed reasons why the Respondent considered that he had committed an act of misconduct. This was not a PCP applied in this case. 277. 2.3.8 and 2.3.9 - It is our judgment that these were not the Respondent's practice. The Claimant was given particulars of the disciplinary allegations against him. The Claimant was asked questions about his conduct. There was extensive correspondence with Stephen Woodward following the Claimant's meeting with him on 8 July. There was further correspondence between the Claimant and Mr Woodward in which the Claimant set out his explanations for his conduct. He took the opportunity to explain step by step how the internal staff cash transfer system worked. He was fully aware of the matters under investigation as Mr Woodward asked him detailed questions and outlined the information he required. The Claimant provided equally detailed answers and took the opportunity to give his explanation. In addition, it is our judgment that the Claimant had the details of the disciplinary allegations in the letter inviting him to the disciplinary hearing. The Claimant knew about the disciplinary allegations beforehand, he had been asked questions about them beforehand and had provided responses to Mr Woodward's queries about them prior to receiving the letter of invitation. 278. It was not the Respondent's practice to formulate disciplinary allegations without holding an investigatory meeting. We had evidence of Mr Basu and Mr Ghandi for example, who both had investigatory meetings with CSIS before their disciplinary hearing. As far as we were aware, neither Mr Basu nor Mr Ghandi was a disabled person. There was no practice applied to them or the Claimant of proceeding to a disciplinary hearing without given detailed reasons of why the Respondent considered that they have committed misconduct. A PCP needs to be applied equally to disabled and non-disabled persons. There was a variation in the process applied to each case, as the Respondent did not follow exactly the same steps in all cases but in our judgment that does not mean that the variation was because of the Claimant's disability. It also does not mean that the Claimant was unaware of the reasons why the Respondent considered that he had committed misconduct. He was well aware of those reasons. There was no PCP applied here. 279. 2.3.10 - The Respondent's practice was to conduct a separate investigation which could include a meeting with the employee, if necessary. That is what was set out in the disciplinary policy. There was no requirement or practice to formulate disciplinary allegations without holding an investigatory meeting. We have already referred to Mr Basu and Mr Ghandi as examples of persons employed by the Respondent in the same department who did have investigatory meetings with CSIS. The Respondent reserved the right to determine what process was necessary in each case. There was no practice of setting up disciplinary charges without holding an investigatory meeting - sometimes there may be one - such as in the case of Basu and Ghandi and other times, as in the Claimant's case, there may be one meeting followed by the investigation continuing in writing. There was no PCP applied here. 280. 2.3.11 - In our judgment, the Claimant knew the charges that he faced and he and his lawyers were able to fully respond to them. He knew the charges, the allegations; the transactions involved and had been able to provide many pages of evidence in his defence of them. This was not a PCP that the Respondent applied."
"31. The key question for the Tribunal was whether this PCP placed the Claimant, a disabled person, at a substantial disadvantage in comparison with persons who are not disabled. If so, the Respondent would then be under a duty to take such steps as it was reasonable for it to have to take in order to prevent the PCP having that effect. …"