Daughters v Aqua Financial Solutions Ltd (Unfair Dismissal : no sub-topic), Court of Appeal - United Kingdom Employment Appeal Tribunal, March 14, 2012,  UKEAT 0149_11_1403
|Resolution Date:||March 14, 2012|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Daughters v Aqua Financial Solutions Ltd (Unfair Dismissal : no sub-topic)|
Appeal No. UKEAT/0149/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On 29 November 2011
Judgment handed down on 14 March 2012
HIS HONOUR JUDGE BIRTLES
MR G LEWIS
MR P M SMITH
MISS A DAUGHTERS APPELLANT
AQUA FINANCIAL SOLUTIONS LTD RESPONDENT
Transcript of Proceedings
Claimant dismissed for behaviour in a bar while drinking with clients. She apologised to the clients the following morning. The Employment Tribunal dismissed claims of (a) unfair dismissal and (b) wrongful dismissal. Appeal allowed on the grounds that (a) contrary to the Tribunal's finding there were serious disputes of fact which the disciplinary hearing and the appeal did not attempt to resolve (b) the Tribunal wrongly discounted the pressure brought by the Respondent's chairman and majority shareholder for the Claimant to be dismissed (c) there was no attempt to address the third limb of Burchell except by assertion.
HIS HONOUR JUDGE BIRTLES
This is an appeal from the Judgment and Reasons of an Employment Tribunal sitting at London South on 11 and 25 October 2010. The Employment Tribunal decided that: (1) the Claimant was not unfairly dismissed; (2) the Claimant's breach of contract claim failed; and (3) the Claimant was in breach of her contractual obligation to repay to the Respondent the sum of £1,583.85.
The Appellant is represented by Mr K Sonaike. The Respondent is represented by Mr Martyn West, consultant. We are grateful to both Mr Sonaike and Mr West for their written and oral submissions.
The factual background
The facts are set out fully in the Employment Tribunal's Reasons at paragraphs 5-40. In summary form, Miss Daughters worked as an independent financial adviser for 16 years and was the founder, owner and Managing Director of the Respondent for 7 years. The business was structured so that she was an employee, and Miss Daughters commenced employment on 22 June 2001. One of her clients was Ms Carolyn Bennett, who was extremely impressed with Miss Daughters' skills and they became friends.
In June 2007 Miss Daughters sold her majority shareholding to Ms Bennett, who became the Chairman of the company. A Mr Brian Soulby also became a shareholder. Notwithstanding Ms Bennett's generosity to Miss Daughters, the business relationship and friendship between her and the Claimant became increasingly strained.
On the evening of 22 January 2010 Ms Bennett received a telephone call shortly after 8.00pm from the Claimant, who said she had ``fucked up again'' and had upset a client that evening, and told her ``a few home truths''. Ms Bennett concluded that the Claimant had been drinking, and told her that she had no right to do that to any client, let alone someone she hardly knew. The client in question was a friend and neighbour of Ms Bennett, whom Ms Bennett had introduced to the firm.
The client and her partner contacted Ms Bennett at home the following morning, 23 January 2010, by text message demanding she go round and see them. She did so. Both the client and her partner were very upset and vociferous in their disgust at how Miss Daughters had behaved the previous night. They spent an hour and a half complaining to Ms Bennett, who was very embarrassed, angry with Miss Daughters for her behaviour (if it were true), and annoyed to be having to try to repair the damage on her Saturday morning.
The client showed Ms Bennett an email apology she had received at 8.48am that day from Miss Daughters, which said:
``I wanted to email you and apologies [sic] for my behavior yesterday. It wasn't just unprofessional it was also unfair of me to say those things to you. Even though there is no excuse for my behavior I thought I would try and explain to you why I acted in such a way.''
She then explained she had had boyfriend trouble and said:
``I hope you can forgive me and if possible I would really like to speak with you and apologies [sic] in person.
I was wrong but I hope you can understand that I am also human and just trying to cope with some pretty crap emotions this week.''
The client explained to Ms Bennett that she did not know what to do when she got the email, but knew that she did not want to inflame the situation and so had replied thanking Miss Daughters for the apology, but saying:
``Whatever your week was like it was unkind and not fair to say those personal and slightly hurtful things to me, especially as you don't even know me. Yes it was very inappropriate and unprofessional! However I am a very understanding forgiving person (hence why I may be a little sensitive) so I can let it go. Believe me I know what it is like to be having a hard time and the effects alcohol can have on people, hence why I am trying to be a little more careful with the drinking. Yes of course I can forgive you as I am not that petty.
I am sorry to say it but we think it is a better idea if we continue our working relationship with Chris. Peter [the client's partner] and I feel that it would be a better idea and would be happier with that.
No need to apologise personally, lets [sic] just move on.''
However, the client and her partner were significantly upset and reported in detail what had happened. They told Ms Bennett that they had met Miss Daughters at the Avalon, a bar close to the business premises, at approximately 4.00pm for a meeting to discuss financial advice. When the Claimant arrived it was apparent she had already been drinking, and they felt pressurised by her into signing a particular fee agreement, and once the agreement was signed the Claimant brought the meeting to an abrupt close and ordered more drink. They said that Miss Daughters became more inebriated and then started to complain about Ms Bennett. At one point during the evening Miss Daughters had dragged the client's partner outside to have a cigarette, even though he did not smoke, and proceeded to tell him all about Ms Bennett's financial situation, and that of her family, which he found uncomfortable. He also considered it unprofessional, and it led him to question whether his financial details would remain confidential.
At another point in the evening, they reported that Miss Daughters had called Peter a ``cunt'', which although was said in humour had shocked and offended him. When the client did not want to carry on drinking at the same pace as her, Miss Daughters berated her for not wanting to carry on drinking, and demanded to know why she was drinking spritzers. The client became so upset that she began to cry, at which point the Claimant said, ``That's right, Emily cries because that's what Emily does'', at which point the two clients left the bar.
On Sunday, 24 January, Ms Bennett spoke to the Claimant on the telephone to express the seriousness of what had occurred. She considered that there were two very serious aspects: that the clients had been insulted, and there had been a breach of confidentiality by discussion of her own personal financial affairs. It was clear to Miss Daughters that Ms Bennett took the matter extremely seriously. Ms Bennett said further discussions would have to take place.
The next day, Monday, 25 January 2010, the Claimant did not attend work. Mr Christopher Jones agreed to see her, and went to her home and obtained Miss Daughters' account of the incident on 22 January 2010. The notes of the meeting were subsequently agreed and are in the bundle. The facts themselves were not in dispute, but the significance or seriousness of Miss Daughters' behaviour was. Miss Daughters accepted that she had offended the client, but did not consider it to be unduly serious, since the client had accepted the apology. She accepted it was probably not sensible to drink in client meetings, and explained her having discussed matters relating to Ms Bennett's personal affairs as part of her sales pitch, and had not thought this would upset Ms Bennett. Miss Daughters accepted that she and the two clients had been drinking for four hours on Friday evening, and said that inevitably the details were a bit hazy, but Miss Daughters considered that the client had become over-sensitive through drink. Miss Daughters was concerned about the relationship between her and Ms Bennett and suggested involving an external specialist consultant, and announced that she would stay at home until matters were resolved, to minimise disruption to staff morale.
Ms Bennett viewed the...
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