Ms L Kong v Gulf International Bank (UK) Ltd: 2201761/2019

Case Number: 2201761/2019 - 1 - EMPLOYMENT TRIBUNALS BETWEEN Claimant AND Respondent Ms L Kong Gulf International Bank (UK) Limited Heard at: London Central On: 9, 10, 13, 14, 15, and 16 January 2020 and (in Chambers) on 17 and 29 January 2020 Before: Employment Judge Stout Ms T Breslin Mr I McLaughlin Representations For the claimant: In person For the respondent: Mr N Siddall QC RESERVED JUDGMENT ON LIABILITY The unanimous judgment of the Tribunal is (1) The Claimant’s claim that she was subjected to detriments because she made protected disclosures contrary to s 47B Employment Rights Act 1996 (ERA 1996) is outwith the Tribunal’s jurisdiction having regard to the time limit in s 48(3) ERA 1996 and is therefore dismissed. (2) The Claimant’s claim that she was unfairly dismissed by the Respondent, contrary to ss 94-98 ERA 1996, is well-founded. (3) The Claimant did not cause or contribute to her dismissal and no deduction falls to be made to any compensation that she may be awarded by reason of any conduct of hers occurring prior to dismissal. Case Number: 2201761/2019 - 2 - (4) There should be no Polkey deduction to any compensation awarded to the Claimant. (5) The Respondent unreasonably failed to comply with a relevant Code of Practice and accordingly any award made to the Claimant will be subject to an uplift pursuant to s 207A(2) Trade Union Labour Relations (Consolidation) Act 1992. (6) The Claimant’s claim for wrongful dismissal is dismissed. REASONS Introduction 1. The Claimant was employed by the Respondent from 15 February 2010. The Respondent is the UK branch of an international bank that is headquartered in Bahrain. Its principal business is client-related activities in treasury and asset management. 2. The Claimant was initially employed as Senior Business Auditor, but promoted to Internal Audit Manager in March 2012 and to Head of Financial Audit in March 2016. She was dismissed summarily on 3 December 2018. 3. The Respondent accepts that the Claimant’s dismissal was procedurally unfair. The main issue for the Tribunal in this case is therefore what was the reason for the Claimant’s dismissal. The Claimant contends that the sole or principal reason for her dismissal was that she had made a number of protected disclosures within the meaning of s 43B of the Employment Rights Act 1996 (ERA 1996). The Respondent accepts that the Claimant made protected disclosures as pleaded, but denies that they were any part of the reason for the Claimant’s dismissal. The Respondent contends the reason was the Claimant’s conduct or some other substantial reason (breakdown in working relationship). The Claimant also contends that she was subjected to other detriments for making protected disclosures. 4. At this hearing we considered only issues as to liability, and as to certain matters that may go to increasing or decreasing the amount of any award that we make to the Claimant, including whether there should be an uplift to reflect the Respondent’s failure to follow the ACAS Code of Practice in the procedure used to dismiss her, and her conduct prior to dismissal. The issues 5. The issues to be determined at this hearing were agreed at the outset to be as follows: Case Number: 2201761/2019 - 3 - Unfair Dismissal (1) Has the Respondent shown that the reason for the Claimant’s dismissal was her conduct or some other substantial reason with the meaning of ss 98(1)(b) or 98(2)(b) ERA 1996? Section 103A Dismissal (2) Was the sole or principal reason for the Claimant’s dismissal that she had made any or all of Protected Disclosures (PDs) 1-10? Detriment (3) Was Detriment a. (below) issued out of time? If so: a. Is that allegation of detriment part of a series of similar such acts or failures and is the last such act within time? Or b. Was it not reasonably practicable for the Claimant to have issued that claim within time and did she issue her claim in this regard in such further period as was reasonable? (4) Was the Claimant subjected to detriment in the following ways: a. The treatment of the Claimant by Ms Harding on 22-23/10/18 (“Detriment a.”); b. The decision to dismiss the Claimant in the absence of any recognised procedure (“Detriment b.”); c. The dismissal of the Claimant (“Detriment c.”); d. The manner of her dismissal (“Detriment d.”); e. The manner of the appeal procedure (“Detriment e.”). (5) Are Detriments (b)-(e) ones which the Claimant is unable to advance against her employer by virtue of s 47B(2) ERA 1996? (6) If the Claimant was subjected to detriment in the ways alleged were the Respondent’s actions in that regard materially influenced by any or all of PDs1-10? Wrongful dismissal (7) Was the Claimant dismissed in breach of contract? Remedy issues to be determined at the Liability Hearing (8) If the Claimant was unfairly dismissed, what would have been the outcome of a fair procedure? (9) Has the Claimant been guilty of culpable or blameworthy conduct and is it just and equitable to reduce the Claimant’s basic award in that regard? Case Number: 2201761/2019 - 4 - (10) Has the Claimant been guilty of culpable or blameworthy conduct which caused or contributed to her dismissal? Is it just and equitable to reduce her compensatory award in that regard? (11) Has the Claimant been guilty of subsequently discovered misconduct and is it just and equitable that she receive no compensation in that regard? ACAS Code (12) Has the Respondent failed to comply with a relevant code of practice? (13) Was any such failure unreasonable? (14) Is it just and equitable to increase the Claimant’s compensation in that regard and to what extent? 6. The above are the issues that it was agreed at the outset should be determined as part of the Liability Hearing. There may remain other issues to be determined at a separate Remedy Hearing if required as follows: (15) What is the proper measure of loss as regards any proven claims? (16) What is the proper level of any injury to feelings claim? (17) Is this an appropriate case for an award of aggravated damages? The Evidence and Hearing 7. The parties both produced written opening and closing submissions, which we read. We heard oral evidence from the Claimant (C) and the following witnesses for the Respondent: a. Rhod Sutton (former Money-Laundering Reporting Officer (MLRO) and Head of Compliance) (RS); b. Ian Henderson (Senior Portfolio Manager) (IH); c. Andrew Sykes (Non-Executive Director and Ex-Chair of the Audit and Risk Oversight Committee (AROC)) (AS); d. David Maskall (Chief Operating Officer (COO)) (DM); e. Julian Anthony (former Chief Financial Officer and Head of Risk) (JA); f. Alison Yates (Head of Human Resources (HR)); g. Jenny Harding (former Head of Legal) (JH); h. Khalid Mohammed (Group Chief Auditor (GCA)) (KM); i. Katherine Garrett-Cox (Chief Executive Officer, CEO) (KGC); j. Gary Withers (Non-Executive Director) (GW). 8. We explained to the parties at the outset that we would only read the pages in the bundle which were referred to in the parties’ statements and written submissions and to which we were referred in the course of the hearing. We did so. We also admitted into evidence certain additional documents which were added to the bundle during the course of the hearing. 9. In particular, we noted when we read the Claimant’s witness statement that she had referred in it to various documents that were not in the bundle, or Case Number: 2201761/2019 - 5 - which had been redacted by the Respondent. We asked, and the Respondent agreed, to locate those emails and to unredact certain sections of relevant documents. 10. We explained our reasons for various case management decisions carefully as we went along. Amendment applications The first amendment application 11. At the start of Day 2 of the hearing, after we had completed our reading of the pleadings, the parties’ written opening submissions, the witness statements and the documents referred to therein, we raised with the parties an issue that arises from the decision of the Court of Appeal in Timis and anor v Osipov (Protect intervening) [2018] EWCA Civ 2321, [2019] ICR 655. 12. The Claimant in her claim form filed on 3 May 2019 had referred to this case at paragraphs 108 and 109, citing it as authority for the proposition that she could bring a claim for subjection to a detriment for having made a protected disclosure under s 47B ERA 1996 in respect of her dismissal, as well as Detriments a.-e. (see List of Issues above), i.e. (in summary) the manner of her dismissal and the manner of handling her appeal against dismissal. The Respondent in its response at paragraph 6(c) had identified this claim as being “misconceived and … based on a misapplication of the ratio of the Court of Appeal in [Timis]”, but had not there explained why the Claimant’s claim was misconceived. The parties agreed that this had also not been discussed or explained to the Claimant at the Preliminary Hearing (Case Management) before Employment Judge Wade on 12 September 2019. In its Skeleton Argument for this hearing, however, the Respondent cited paragraph 91 of Underhill LJ’s judgment in Osipov which captures the ratio of the Court of Appeal’s judgment in that case as follows: 91 SUMMARY ON THE EFFECT OF S 47B(2) [sic] The foregoing analysis has been regrettably dense, but I can summarise my essential conclusions as follows: (1) It is open to an employee to bring a claim under s 47B(1A) against an individual co-worker for subjecting him or her to the detriment of dismissal, ie for being a party to the decision to dismiss; and to bring a claim of vicarious liability for that act against the employer under s 47B(1B). All that s 47B(2) excludes is a claim against the employer in respect of its own act of dismissal. (2) As regards a claim based on a distinct prior detrimental act done by a co- worker which results in the claimant's dismissal, s 47B(2) does not preclude recovery in respect of losses flowing from the dismissal, though the...