Mr R Ramchandani v Citibank N.A: 3200403/2014
| Jurisdiction | England & Wales |
| Court | Employment Tribunal |
| Judgment Date | 14 September 2020 |
| Citation | 3200403/2014 |
| Published date | 30 July 2020 |
| Subject Matter | Unfair Dismissal |
Case Number: 3200403/2014
1
EMPLOYMENT TRIBUNALS
Claimant: Mr R Ramchandani
Respondent: Citibank N.A
Heard at: East London Hearing Centre
On: 12, 13, 14, 15, 19, 20, 21, 22 November 2019
and 16 December 2019
Before: Employment Judge Russell
Representation
Claimant: Mr J Alghazy, QC
Respondent: Mr S Devonshire, QC
JUDGMENT
The judgment of the Tribunal is that:-
1. The claim for unfair dismissal succeeds.
2. The application for reinstatement is withdrawn.
3. The application for re-engagement fails.
4. The Claimant is entitled to a basic and compensatory award.
5. If a fair procedure had been followed, there is a 100% chance that the
Claimant would have been fairly dismissed by 15 October 2014.
6. The basic and compensatory awards shall be reduced by 75%.
7. There shall be a 25% uplift by reason of the Respondent’s unreasonable
failure to comply with the ACAS Code.
8. The complaint under s.92 Employment Rights Act 1996 fails.
REASONS
1 By a claim form presented to the Employment Tribunal on 18 March 2014, the
Case Number: 3200403/2014
2
Claimant brought a complaint of unfair dismissal from his job as Managing Director and
Head of European Foreign Exchange Trading effective on 10 January 2014. He also
complains that particulars of the reasons for dismissal were inadequate or untrue. The
Respondent initially resisted all claims.
2 The claim was subject to a lengthy stay as there were ongoing criminal
proceedings in the United States of America in which the Claimant was ultimately
acquitted. The stay was lifted and a Preliminary Hearing took place before Employment
Judge Warren on 24 January 2019 at which a List of Issues was agreed. At that hearing,
the Respondent conceded that the Claimant was unfairly dismissed because it had not
followed a fair procedure. The remaining issues to be determined relate to remedy.
Employment Judge Foxwell subsequently granted leave for the Respondent to amend its
Response to include allegations of misconduct discovered after the Claimant’s dismissal.
3 On 15 August 2019, I heard the Claimant’s application for specific disclosure and
ordered disclosure of four categories of document. I also required the Respondent to
provide further information identifying the person or people who made the decision to
dismiss the Claimant. The decision makers were subsequently identified as Mr Ybarra
and Mr Forese.
4 The first morning of this final hearing was converted to a further Preliminary
Hearing to decide outstanding disputes about privilege, a Restricted Reporting Order,
further disclosure, whether the Claimant should be permitted to claim re-engagement and
whether the Respondent should be permitted to adduce 1,000 pages of evidence from the
Claimant’s criminal trial. For reasons given orally, I made the following decisions:
4.1 The evidence from the US criminal trial was not admitted. It was only
disclosed on the previous Friday, there was no good reason for late
disclosure, it was not relevant to the issues to be decided, Mr Gardiner
(whose evidence it concerned) would not be attending Tribunal and I would
have no opportunity to assess his credibility for myself.
4.2 There is a rule 50 Order to protect the anonymity of clients of the
Respondent which continues to apply.
4.3 Copies of the additional documents were available at the hearing and so any
application to admit them should be made at the point in the evidence where
it was alleged to be relevant.
4.4 Although disappointed that it had not been identified sooner, I permitted the
Claimant to include re-engagement in the list of issues. It is a primary
remedy for unfair dismissal and the Respondent is not unduly prejudiced as
it can put its case on the principle of why the remedy is not appropriate
(which is the same as for re-instatement which was in the list of issues). If
such an order were appropriate in principle, there would be a further hearing
to consider whether it would be practicable in light of possible jobs to which
the Claimant could be re-engaged.
4.5 Two and a half paragraphs were deleted from the Claimant’s witness
statement as I accepted the Respondent’s submissions that they contained
privileged material.
Case Number: 3200403/2014
3
4.6 I allowed the Claimant to give evidence about his attempts to find work as it
was relevant to the issue of the period for future loss.
5 I was provided with an agreed bundle of documents in electronic format
comprising approximately 3,500 pages and I considered those to which I was taken in
evidence. I attached little weight to documents which exceeded the scope of the issues in
this hearing, for example correspondence between the Respondent and its insurers, inter-
party correspondence, documents arising from the US criminal proceedings and some
notes taken by a representative at Mr Stimpson’s Employment Tribunal hearing.
6 I heard evidence from the Claimant and Ms Carly Hosler and Mr Peter Wells on
his behalf. For the Respondent, I heard evidence from Mr James Forese, Mr Julian
Phipps and Ms Helen Hale. In assessing credibility, I bore in mind the guidance given by
Leggatt J in Gestmin SGSP S.A. v Credit Suisse (UK) Ltd & another [2013] EWHC
3560 (Comm) about the effect of litigation upon the reliability of oral evidence and the
general tendency to believe one’s memory to be more faithful than it is, particularly where
an experience is strongly, vividly and confidently recollected. In fact, human memory is
fluid and constantly re-written whenever retrieved and subject to influence by external
information, such as the process of civil litigation itself, when a witness will often have a
stake in a particular version of events. Leggatt J suggested that inferences drawn from
contemporaneous documents and known or probable facts will be more reliable than oral
evidence, which is more useful as an opportunity to apply critical scrutiny to the
documents and gauge the personality, motivations and working practices of a witness.
Above all, it is important to avoid the fallacy of supposing that because a witness has
confidence in his/her recollection and is honest, evidence based on their recollection
provides any reliable guide to the truth.
7 Generally, and for reasons more fully expressed below, I found Mr Forese to be
an impressive witness whose evidence I mostly felt confident in accepting. By contrast, I
found the evidence of the Claimant and Mr Phipps far less reliable. Both men gave
evidence which I find that they genuinely believed and which they were adamant was
accurate. Both men, however, have a stake in a particular version of events: the Claimant
in restoring his career and reputation, Mr Phipps in showing why reengagement would not
be practicable (in large part due to the consequences of the chats for the Respondent).
This was particularly evident in their respective interpretations of the chats considered
extensively in evidence. I accept Mr Alghazy’s submission that, at times, Mr Phipps
appeared to be trying to build a case after the event based upon his opinion and desire to
interpret the chats in the worst possible light. However, I also accept Mr Devonshire’s
submission that the Claimant’s evidence was fuelled by his conviction that he is a
blameless victim and was based upon his interpretation of the chats following extensive
litigation, including criminal prosecution, in which he has so convinced himself of the
rightness of his position that he interprets every chat in the most exculpatory light possible
and often fails to engage with the plain effect of the language that he and the other chat
participants used.
8 The agreed issues are as follows.
Unfair Dismissal - Remedy
(1) Should the Claimant be reinstated and/or re-engaged?
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