Eiger Securities LLP v Korshunova (Victimisation Discrimination : Protected disclosure), Court of Appeal - United Kingdom Employment Appeal Tribunal, December 02, 2016, [2016] UKEAT 0149_16_0212

Resolution Date:December 02, 2016
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Eiger Securities LLP v Korshunova (Victimisation Discrimination : Protected disclosure)
 
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Copyright 2016

Appeal No. UKEAT/0149/16/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 1 November 2016

Judgment handed down on 2 December 2016

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

EIGER SECURITIES LLP APPELLANT

MISS E KORSHUNOVA RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0149/16/DM

APPEARANCES

UKEAT/0149/16/DM

SUMMARY

VICTIMISATION DISCRIMINATION - Protected disclosure

VICTIMISATION DISCRIMINATION - Detriment

VICTIMISATION DISCRIMINATION - Dismissal

The Employment Tribunal erred in failing to identify any legal obligation, as opposed to guidance, of which the Claimant believed the Respondent to be in breach. Accordingly the finding that the Claimant had made a qualifying disclosure within the meaning of the Employment Rights Act 1996 (``ERA'') section 43B(1) and therefore a protected disclosure was set aside. The finding that the Claimant was subject to a detriment for making a protected disclosure is set aside. The Employment Tribunal also erred in applying the wrong test in considering the claim under ERA section 103A. They applied the test appropriate to a section 47B claim and not that for unfair dismissal. Claims remitted to a differently constituted Employment Tribunal for rehearing.

UKEAT/0149/16/DM

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THE HONOURABLE MRS JUSTICE SLADE DBE

1. Eiger Securities LLP (``the Respondent'') appeals from the decision of an Employment Tribunal (``ET''), Employment Judge Jones (``EJ'') sitting with members, sent to the parties on 20 October 2015 after a hearing lasting six days. The ET held that the Claimant's dismissal was unfair under section 103A of the Employment Rights Act 1996 (``ERA'') because she made a protected disclosure and that she had been subjected to a detriment within the meaning of ERA section 47B on the ground that she had made a protected disclosure. The Claimant appeared in person before the ET. The Respondent was represented by Mr Uduje of counsel. Before me the Respondent was represented by Mr Paul Nicholls QC and the Claimant by Mr Thomas Cordrey of counsel.

2. The Respondent carries on a broking business in financial instruments. Mr Ashton is the managing director of the company. The Claimant commenced employment with the Respondent in October 2011. That employment terminated on 30 April 2012. From 1 May 2012 until 31 March 2013 she was a fixed share partner in the Respondent. From 1 April 2013 until the termination of her employment on 25 July 2014 she was again an employee. In April 2013 the Claimant started working on the dealing floor as a sales executive. The communication which was held by the ET to be a protected disclosure was made by the Claimant on 14 May 2014 when she challenged Mr Ashton about using her computer screen in dealing with an external trader without identifying himself as not being her. Events which followed thereafter founded the claims that by reason of a protected disclosure in her words to Mr Ashton on 14 May 2014 the Claimant had suffered a detriment by the reallocation of three of her clients and had been dismissed for that reason on 24 July 2014.

The Relevant Statutory Provisions

3. Employment Rights Act 1996

Section 43A:

``In this Act a ``protected disclosure '' means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.''

Section 43B(1)

``In this Part a ``qualifying disclosure'' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show ...

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, ...''

Section 47B(1):

``A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.''

Section 103A:

``An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.''

The Relevant Findings of Fact

4. Mr Ashton, the managing director of the Respondent is FCA registered. He was the compliance officer. The Claimant is not FCA registered. The brokers at the Respondent as do many brokers in the industry use a tool called Bloomberg Chat to chat with traders in the firm's client banks. The Respondent's brokers would have a number of screens on which to conduct live IB chats.

5. The Respondent had a practice of sharing amongst brokers their passwords for computers and IB chat. At paragraph 19 the ET held that:

``... The practice meant that although each broker had their own password to the IB chat on their screens conducted in their name, they were expected to share passwords with each other and the Respondent. ...''

6. The Claimant was moved from the emerging markets desk to working with Euro and Dollar products. In April 2014 two colleagues were reassigned and the ET held that it was likely that thereafter the Claimant was working on her own. It was then that she noticed that her username and password were being used by Mr Ashton and others.

7. On 12 May when returning to the office after a break she found Mr Ashton sitting at her computer conducting an IB chat with a trader who she usually dealt with. She asked Mr Ashton what he was doing and he told her that he had just conducted a trade. The Claimant resumed her chat with the trader and explained that she had not been her speaking to him earlier but her boss. The trader agreed with her that her boss should have introduced himself. The ET found that it is likely that the Claimant changed her password. Mr Ashton asked IT to unblock her screen. They found at paragraph 28 that Mr Ashton did not complain to the Claimant about this at the time.

8. Later on 12 May Mr Ashton sent another chat to another trader from the Claimant's computer without introducing himself. When the Claimant noticed this she contacted the trader and expressed her anger. The trader was not pleased with what had been done and referred to ``deception''. He said that what the Claimant's boss, Mr Ashton, had done was unacceptable.

9. On 14 May Mr Ashton had asked IT to unlock the Claimant's screen as she had changed her password. When the Claimant returned to the office from a break she found Mr Ashton at her screen. There was a conflict of evidence about what was said. The ET made a finding of fact which is not challenged on appeal that when she saw Mr Ashton at her screen, the Claimant asked him to explain what he was doing. The ET found that it is likely that Mr Ashton stated he was sending a letter to the back office. The ET held at paragraph 32 that the Claimant said:

`` ``... but I have sent everything before I went for lunch. It is wrong for you to log in under my name when I am not in the office and trade under my name without making it clear that it is not me who is making the trade and identifying that it is you. Yes, and my clients do not like that you talk to them pretending it is me when I am away for lunch'' (It is likely that this is when he stated that there was the door)''

The ET held that she then said:

``...Well, at least you can say that it is you to my clients next time.''

10. Later in the day Mr Ashton again asked IT to unlock the Claimant's computer screen. Mr Ashton sent the Claimant a text message saying that if she had changed her password without giving it to him that would be gross misconduct. The Claimant responded to say that his text was noted and gave him the username and password.

11. On 2 July 2014 the Claimant made a trading error which lost the Respondent money, 1,50 Euros. She managed to reduce the loss to approximately £267.00. No warning was given and the Respondent took no disciplinary action in respect of this error at the time.

12. On 4 July 2014 Mr Ashton informed the Claimant that he would be transferring some of the new clients that she had been given in April to other brokers. The accounts of three banks were reallocated to junior brokers.

13. On 16 July the Claimant made another trading error as a result of which the Respondent stood to lose £10,000. However, as she had a good relationship with the purchasing trader he released the Respondent from the sale and no loss was suffered.

14. On 17 July 2014 Helen Thomas, the Head of HR invited the Claimant to a disciplinary hearing on 21 July to discuss ``Failure to follow instructions and poor performance''.

15. By letter on 21 July the Claimant said that she would not attend. The Claimant and Mr Ashton met and had an argument. Mr Ashton suspended her. The Claimant refused to leave unless she first received a letter confirming her suspension. Such a letter was given to her by Ms Thomas. The Claimant left and turned off her screen before leaving. The Claimant received another letter dated 21 July which gave the reasons for the disciplinary action. Added to the initial charge of failure to follow instructions and poor performance was that of changing her Bloomberg password without authorisation. This was said to be an act of gross misconduct.

16. A disciplinary meeting was scheduled for 24 July. The Claimant refused to attend the disciplinary hearing. Later that day in an email to her the Respondent set out the four charges against the Claimant. The first two were related to the errors on 2 and 16 July, and the fourth of refusing to attend an informal meeting with Mr Ashton or communicate with him after his return from leave on 21 July and refusing to leave the premises after being suspended, insubordination and hostile behaviour. The third charge was:

``That after being suspended on full pay and being specifically told NOT to touch your computer by the senior partner you refused to do so...

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