Ms E Volkova v Credit Suisse (UK) Ltd and others: 3202411/2019 and others
| Judgment Date | 02 August 2021 |
| Published date | 10 August 2021 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case Numbers: 3202411/2019
3201011/2020 & 3200203/2020
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EMPLOYMENT TRIBUNALS
Claimant: Ms E. Volkova
Respondents: (1) Credit Suisse (UK) Limited
(2) Ms L. Falk
(3) Mr R. Keogh
(4) Ms T. Griffin
Heard at: East London Hearing Centre
On: 9-12, 16-19, 23- 24 March 2021; and
31 March, 1 and 26 April 2021 (in chambers)
Before: Employment Judge Massarella
Members: Mrs B. Saund
Mr J. Webb
Representation
Claimant: Mr M. Purchase QC
Respondent: Ms D. Sen Gupta QC
RESERVED JUDGMENT
The judgment of the Tribunal is that: -
1. the Tribunal has no jurisdiction to hear the claims of detriment (s.47B
ERA) against the Second and Third Respondents as named
Respondents (contained in Case No. 3201011/2020), because they
were presented outside the statutory time limit, and there was no
application to extend time; accordingly, they are dismissed;
2. the Claimant made the protected disclosures alleged under Issues 6.1,
6.2(A)(i) and (ii), 6.2(B)(ii), and 6.2(C)(i)-(iii), insofar as they relate to
training, supervision and support;
3. the other matters relied on under Issue 6 did not amount to protected
disclosures;
Case Numbers: 3202411/2019
3201011/2020 & 3200203/2020
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4. the Claimant was not subjected to detriments (s.47B ERA) by the First
or Fourth Respondents on the ground that she had made protected
disclosures, and those claims are dismissed;
5. the Claimant was not automatically unfairly dismissal (s.103A ERA) by
reason of her having made protected disclosures, and that claim is
dismissed;
6. the Claimant’s claim of ordinary unfair dismissal (s.94 Employment
Rights Act 1996 (‘ERA’)) succeeds: the dismissal was unfair, having
regard to the delay by the First Respondent in conducting the
disciplinary process;
7. the Claimant contributed to the dismissal by her own conduct;
8. there will be a remedy hearing to determine the compensation to
which the Claimant is entitled, including consideration of the extent to
which compensation should be reduced by reason of contribution,
and whether there should be a Polkey reduction and/or an ACAS
uplift.
REASONS
This has been a remote hearing, which has not been objected to by the parties. The
form of remote hearing was V (CVP). A face-to-face hearing was not held, because it
was not practicable, and all issues could be determined in a remote hearing.
Procedural history
1. The Claimant brought three cases against the Respondent.
2. On 7 October 2019, Case no. 3202411/2019 was presented, after an ACAS
early conciliation procedure between 8 August and 8 September 2019 (‘Claim
1’). It was brought while the Claimant was still in employment, against the First
Respondent (‘R1’) only, and it contained claims of public interest disclosure
(‘PIDA’) detriment, by reference to disclosures made by her on 10 September
2018.
3. R1 presented its response to Claim 1 on 9 December 2019. It was amended
on 17 April 2020 in response to the Claimant’s replies (dated 13 March 2020)
to a request for further information. R1 denied that the Claimant had made
protected disclosures and/or that she had been subjected to any detriment. R1
also raised time limit issues.
4. On 15 January 2020, Case No. 3200203/2020 was presented (‘Claim 2’), after
an ACAS early conciliation period between 8 August and 8 September 2019.
This claim was also brought against R1 only. It contained further allegations of
PIDA detriment, and a claim of automatically unfair dismissal, by reason of the
Claimant’s having made protected disclosures. It contained an application for
interim relief, which was later withdrawn.
Case Numbers: 3202411/2019
3201011/2020 & 3200203/2020
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5. On 30 January 2020, the second ET3 was presented. The allegations of PIDA
detriment were denied. R1 resisted the claim of automatic unfair dismissal and
contended that the dismissal was for gross misconduct.
6. A preliminary hearing for case management took place before EJ Scott on 14
February 2020, at which the final hearing was listed to determine liability only.
7. On 15 April 2020, Case no. 3201011/2020 (‘Claim 3’) was presented, after an
ACAS Early Conciliation period between 6 and 8 April 2020. This claim was
brought against all four Respondents. The Claimant alleged that the Second,
Third and Fourth Respondents, individually and collectively, subjected her to
PIDA detriments, and that R1 was vicariously liable for their actions.
8. On 23 July 2020, the third ET3 was presented. The Respondents denied that
the Claimant made protected disclosures and/or had been subjected to any
detriments.
9. By an order dated 20 August 2020, the three claims were consolidated.
The hearing
10. The Tribunal had an agreed bundle of documents of some 3,500 pages; a
witness statement bundle, which ran to over 200 pages; an agreed chronology
and cast list; an agreed list of issues, approved by EJ McLaren (see Annex 1);
and a joint suggested reading list. The Respondents provided us with an
(unagreed) glossary of terms.
11. On behalf of the Claimant, we heard evidence from the Claimant herself, Ms
Ellina Volkova, and from Ms Shan Shan Wong (formerly Head of Product
Offering and Sales Management), whom Ms Sen Gupta (Counsel for the
Respondent) chose not to cross-examine. We also read a statement from Ms
Djamila Tiberghien-Kurmanbaeva (the Claimant’s colleague from a previous
employment).
12. For the Respondents we heard from the Second, Third and Fourth
Respondents and from Ms Jill Cuthbert (Director and Employee Relations
Specialist).
13. The Respondents sought to rely on two supplementary witness statements
from Mr Keogh and Ms Falk, dated 7 March 2021. By consent, we admitted
them into evidence.
14. Ms Falk and Mr Keogh gave evidence by video link from Switzerland. Under
Swiss law, foreign authorities are not permitted to conduct legal proceedings in
Switzerland without the express prior consent of the High Court of the Canton
of Zürich and the Swiss Federal Department of Justice and Police. The
process for securing that consent, under the relevant provisions of the Hague
Convention, is described in correspondence between the parties and the
Tribunal, which is retained on the Tribunal’s file. For the purposes of this
judgment, I need only record that authorisation was granted on 8 March 2021,
and the Tribunal was provided with a translation of that document on 8 March
2021. On 11 March 2021, several days before the relevant evidence was
given, the Tribunal asked Counsel to prepare an agreed summary of any
matters, to which it should have regard. They did so, and we were satisfied
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