IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Claire Cloarec

CLAIMANT

 

AND

 

 

Royal Bank of Scotland International

RESPONDENT

 


 

TRIBUNAL JUDGMENT


 

 

Reference:                    [2017] TRE155

 

Hearing Date:                13th July 2018

 

Before:                                     Advocate C R Davies, Deputy Chairman

                                    Mrs S Cuming and Mr N Vautier, Panel Members

                                               

 

Appearance:

For the Claimant:           In Person

For the Respondent:     Mr Huw Thomas, Carey Olsen

 

 

JUDGMENT

 

The Tribunal finds as follows:

  • The Claimant was not unfairly dismissed;
  • The Claimant was not wrongfully dismissed.

The reasons for this decision are set out below.

 

THE REASONS

 

Summary

 

  1. The Claimant was a team manager and a very long-standing employee of the Respondent.  She was dismissed without notice for gross misconduct in July 2017 following an investigation and disciplinary process.  The dismissal was upheld on appeal.  The nature of the misconduct was an allegation of bullying and the Respondent has a well-publicised ‘zero tolerance’ policy towards that kind of behaviour.

  2. The Claimant claimed unfair dismissal and wrongful dismissal.  A wrongful dismissal claim is a contractual claim for notice pay. 

 

  1. The Claimant considered herself a happy and loyal member of staff.  She felt that the decision to dismiss her was disproportionate because of her long service and her good record; she said she should have been coached and not sacked.  A male colleague accused of similar behaviour had not been dismissed which the Claimant said was unfair.  One of the reasons for the dismissal related to the Claimant’s conduct of a recruitment process and the Claimant felt that it was unfair that she had been disciplined over a process that her line manager, Carrie Smith, had been aware of.  For the first time in her witness statement, the Claimant alleged that there had been a conspiracy to dismiss her led by Carrie Smith.

 

  1. The Respondent agreed that the Claimant was excellent at her job, and that she had consistently received glowing appraisals.  The bank’s position was that the Claimant had been fairly dismissed for a fair reason. To them, appropriate behaviour towards other employees is an essential expectation for any employee and not something that can (or should) be coached.

 

The Facts

 

  1. We were provided with bundles of documents, which we have considered.   We heard evidence on oath from the Claimant.  Two fellow employees Mr Boyes-Southern and Mr David Ratcliffe gave evidence to support her.  We heard from a number of witnesses for the employer: Ms Carrie Smith, Ms Mikaela Le Vesconte, Mr Paul Jones and Mr Tom Colclough.  The witnesses all provided us with witness statements, which stood as part of their evidence. 

 

  1. We saw copies of the Complainant’s appraisals for the period from 2014 to 2016.  They are very complimentary.  At the end of 2016 Ms Cloarec was told that she “fitted in really well to your peer group” and was described as “a pleasure to work with”.

 

  1. The bank’s policies and procedures are very clear in relation to bullying which they define as “intimidation on a regular and persistent basis, or – in exceptional cases – a one off, which serves to undermine someone’s competence, effectiveness, confidence and integrity”.   The contractual documents state that bullying is considered gross misconduct and is potentially a ground for summary dismissal.

 

  1. In February 2017, a member of the Claimant’s team (who we shall call MS) wrote a letter to Carrie Smith.  MS had been employed by the bank for 8 years.  The letter said that the Claimant had bullied MS over a period of 7/8 months and that MS had been “spoken to abruptly, mocked and belittled”.  He was dreading returning to work and was unwell. Carrie Smith had a conversation in a neutral place with MS and then triggered the internal process for an investigation.  MS was on sick leave for a period, and that he later left the bank although this was not directly because of any bullying.

 

  1. By 8th March 2017, MS had decided he wanted to bring a formal grievance. 

 

  1. At around the same time a second employee brought a grievance against a second manager, Mr Boyes-Southern who was quite new in his role.  Mr Boyes-Southern worked closely with the Claimant.  The issues are to some extent connected.

 

  1. As would be expected from an organisation of this size, the procedure followed by the bank was thorough.

 

  1. The investigating officer for the grievance was Ms Le Vesconte.  Ms Le Vesconte interviewed Ms Cloarec twice and she denied any wrongdoing.  She spoke to MS and investigated the matter with the help of the human resources department.  On 8 May 2017 Ms Le Vesconte upheld MS’s grievance of bullying against Ms Cloarec on the basis of four findings which we summarise as follows:

 

    1. The Claimant had followed an unfair recruitment process for a role that MS would have been interested in applying for, and had acted unfairly towards him;
    2. In mid-2016, MS had approached the Claimant with an idea but he was nervous and repeated his words. The Claimant had mocked him;
    3. On 21 November 2016, MS approached the Claimant for a sign off and explained what he needed.  The Claimant had stopped MS in mid-sentence stating ‘I understand the process love’ in a condescending way;
    4. On 2nd November 2016, MS sent an email to the Claimant and Mr Boyes-Southern saying that he wanted to talk to them about a special holiday request, which he needed pre-approval for. MS wanted advance approval to attend a family wedding and to compete in a sporting event, something the bank had previously supported. The Claimant had inappropriately called a meeting to discuss the request and the meeting became heated.  The Claimant had told MS to choose between his career and his sport;

 

  1. Ms Le Vesconte concluded that these matters were potential acts of bullying by the Claimant. Clearly, this was now a disciplinary issue and on 28th March 2017 the Claimant was suspended from work.

 

  1. A disciplinary officer was appointed, Mr Paul Jones. The disciplinary allegations were set out in writing on 30th May 2017 and the principle findings of Ms Le Vesconte were refined into four disciplinary allegations:

 

    1. The Claimant breached the bullying policy when she unfairly treated MS (and another member of staff) in their application for a role she was recruiting for, and that on 10 February 2017 she had given feedback to MS (with Mr Boyes-Southern present) which had been intimidating and destructive;
    2. The Claimant breached the bullying policy when she belittled/ridiculed MS around the middle of 2016;
    3. The Claimant breached the bullying policy when she ridiculed MS when he approached her for a sign off;
    4. The Claimant breached the bullying policy when she behaved in a destructive and intimidating way towards MS in a meeting held to discuss his annual leave in November 2016. Following that meeting, MS had been encouraged to apologise to her.

 

The Claimant was made aware that the allegations could lead to dismissal without notice.

 

  1. Mr Jones decided to carry out some additional investigation, as he put it to get to the “nitty gritty”.  Following two disciplinary meetings and a number of interviews Mr Jones upheld all four allegations and decided to dismiss the Claimant.  The decision to dismiss without notice was confirmed in writing on 28th July 2018 and the letter provided detailed information as to how Mr Jones had reached his conclusions.  He felt that the Claimant had given conflicting versions of events.  Mr Jones had concluded that the Claimant had deliberately chosen not to follow the recruitment process so that she could chose her preferred candidates and that the feedback given to MS was unnecessary and destructive.  In relation to the three occasions in 2016, Mr Jones found that the Claimant had acted in an intimidating way towards MS, had belittled and ridiculed him.  He felt that the Claimant had demonstrated no insight or remorse.

 

  1. The Claimant appealed.  She said that her manager had been aware of the recruitment process that she followed, and that the situation should have been dealt with as a coaching need.  Mr Colclough was appointed to hear the appeal. The Claimant’s grounds of appeal were, to summarise, that it was the line manager’s fault that the recruitment process had not been followed, and that if she had a coaching need this should have been identified and dealt with.

 

  1. On 4th October 2017, Mr Colclough wrote to the Claimant, he had decided to uphold the decision to dismiss.  In relation to the recruitment process, he felt that the real issue was the manner in which the Claimant had behaved towards MS.  He did not believe that the bullying behaviour identified was a coaching need.

 

        The Witness Evidence

 

  1. We would summarise the Claimant’s evidence as follows:

 

    1. In her witness statement, the Claimant said that she had been targeted, and that the disciplinary officers had been misled into dismissing her.  She alleged sexual discrimination on the part of the bank, and serious misconduct at work on the part of Carrie Smith.  None of these allegations had been raised by the Claimant during the disciplinary process;
    2. The Claimant said that she was a longstanding employee with a good record (which was not disputed).  Nobody had ever complained about her behaviour and if they had she would have made changes;
    3. The Claimant accepted that she was aware of the bank’s policy towards bullying;
    4. The recruitment procedure that had triggered one of the allegations had been approved by Carrie Smith.  The Claimant gave animated evidence about this process and she clearly felt that she had not deliberately misused the process.  She had followed a process agreed by her line manager and did not accept any allegations of wrongdoing;
    5. The Claimant accepted that the incident over MS’s holiday request had not gone ‘swimmingly’ and that that she had ‘seen red’.  She had apologised for allowing the meeting to become heated;
    6. MS had apologised to the Claimant for his behaviour towards her over the holiday request (it transpired that, without the claimant’s knowledge, this apology had been encouraged by Mr Boyes-Southern);
    7. The Claimant was critical of  Ms Le Vesconte’s performance as a manager;
    8. The Claimant denied that the allegations were true.  She felt that they had not been properly investigated and that the decision makers had failed to take into account potential conflict of interest.   

 

  1. We would summarise the evidence of Mr Boyes-Southern as follows:

 

    1. Mr Boyes-Southern had also been disciplined following a similar grievance from a second employee.  Only two of the allegations made against him had been upheld.  There were a number of other mitigating factors and he had been given a final written warning;
    2. He had worked with the claimant for a long period.  He clearly enjoyed working with her and felt that she was a good, supportive colleague to her team;
    3. Mr Boyes-Southern accepted that there had been difficult meetings with MS and that not all had gone to plan. MS had become emotional and visibly upset.                   

 

  1. We found the evidence of Mr Ratcliffe perplexing.  Mr Ratcliffe sat next to the Claimant at work; he is also a union representative at the bank.  He had assisted Mr Boyce-Southern during his disciplinary process.  In his witness statement (which he attested to on oath) Mr Ratcliffe gave a glowing report of the Claimant  However from an email dated 13 March 2018, disclosed by the employer, it was clear that he was reluctant to be a witness for the Claimant.  He said, “There were occasions where I felt she was purposely difficult with members of staff and some of those occasions formed part of her disciplinary.”   Giving evidence, he said that the Claimant had a very ‘black and white’ management style and she could be a little harsh. We found it difficult to reconcile the two and we felt that we could put little weight on Mr Ratcliffe’s evidence.  We accept that he held the Claimant in high regard and he was not alone in that respect. 

 

  1. A number of witnesses gave evidence on behalf of the employer and we summarise the relevant parts of their evidence as follows:

 

    1. Carrie Smith was the Claimant’s line manager.  She was the person that MS had gone to first and she described him as distressed, a “broken man”.  She said that the Claimant was a strong performer, but could be abrupt and defensive when challenged.  The Claimant was a “control freak”. It was put to Ms Smith that this personality trait was not reflected in the Claimant’s appraisals.  She accepted that fact, and said that she had learnt the importance of addressing behaviour as well as work performance through the appraisal process. Ms Smith agreed that she had approved the recruitment process but she had been a relatively new manager, and had relied on the Claimant’s experience.  The Claimant chose not to put to Ms Smith any of the allegations appearing in her own witness statement;
    2. Mikaela Le Vesconte is a specialist manager and conducted the investigation of MS’s grievance. In conducting the grievance, she had been supported by HR.  She knew the Claimant, but not well, and she had worked with MS in the past.  Ms Le Vesconte explained the process that she had followed. She had formed the view through her investigation that the Claimant had an unacceptable people management style and that this had affected the health and work of a member of staff.  Ms Le Vesconte described an incident during the investigation meeting when the Claimant had behaved towards her in a way that was similar in tone and action to the behaviour alleged by MS.  She agreed with the subsequent decision to dismiss the Claimant;
    3. Paul Jones is a relationship director for the bank and he was the disciplinary officer for this case.  He explained the process that he had followed, which included interviewing a number of witnesses as he felt he wanted additional information.  In relation to the recruitment process, he felt that the Claimant had deliberately breached the policy.  The other allegations of bullying really came down to a decision as to whom he believed.  He preferred the information provided by MS and explained why that was the case.  He had also been the disciplinary officer in the case relating to Mr Boyes-Southern, he had not upheld all of the allegations against him and explained why he had also come to a different decision as to the sanction.  We pressed Mr Jones as to why he had decided to dismiss the Claimant without notice.  He accepted that he had not given direct consideration to whether a notice period could be given in this case, but  he was satisfied that this was a case of gross misconduct.  He accepted that there had been good appraisals and long service, but these incidents had taken place;
    4. Tom Colclough is a product lead for the bank.  He was asked to do the appeal.  Again, he decided to conduct some additional interviews.  He declined to interview some witnesses who had been suggested by Carrie Smith.  He sought out the Claimant’s appraisals and was surprised that there was not more focus on her behavioural strengths or weaknesses.  In conducting the appeal, he had focused on the grounds of appeal, the quality of the investigations and his own view of events.  He had decided to uphold the decision.  Mr Colclough explained that he could not just reflect on one individual but others who might be impacted.  He could not put the Claimant back in the workplace with these behaviours and she had shown no reflection or capacity for change.  The Claimant had not offered any mitigation and had not taken responsibility for her actions or shown any remorse.  During the appeal, the Claimant had not challenged Mr Jones’ summary of events, her main argument had been that her seniors knew about her actions and should have coached her.  Mr Colclough was clear that whilst performance can be coached behaviours such as bullying could not, particularly when the member of staff is unable to reflect on their actions.

 

  1. MS is no longer at the bank, and there was no opportunity for us to hear his evidence but we have seen the documentary records of the investigation and disciplinary process – which includes notes as to what he said to those conducting the investigation.

 

  1. The Tribunal found the following facts:

 

    1. The bank followed a careful and thorough process.  This process included a good level of investigation;
    2. The bank believed that the Claimant had bullied MS and that she was guilty of misconduct.  The bank had reasonable grounds to form that belief;
    3. The bank has a zero tolerance policy for bullying and this was known to the Claimant;
    4. Bullying was a ground for summary dismissal under the Claimant’s contract of employment;
    5. There was no conspiracy against the Claimant, and the Claimant did not raise those allegations during the process – there was no reason for the employer to consider her concerns;
    6. To the extent we have to form a view on the facts alleged themselves (for the purposes of the wrongful dismissal claim) we find:

 

                                                               i.      We accept that the recruitment process was wrong and that the Claimant knew that.  We are not convinced that the Claimant deliberately used the wrong process as a means to bully MS, and we are mindful that her manager was well aware of the process and presumably able to intervene had she wished to.  We find it likely that the Claimant badly mishandled her discussion with MS about the recruitment and that he felt undermined because of the way that she spoke to him.  We are however curious as to why Ms Smith did not take a greater role in managing the discussions with unsuccessful staff members who may have wanted the two roles that were recruited;

                                                             ii.      In relation to the other allegations of bullying towards MS, we have no reason to disagree with the conclusions of the investigator, disciplinary officer or appeal officer who had the benefit of seeing/speaking to the witnesses.  We find it more likely than not that Ms Cloarec spoke to MS in a way that met the bank’s definition of bullying.

 

Unfair Dismissal - The Law

 

  1. All employees are entitled to protection from unfair dismissal as a result of Article 61 of the Employment (Jersey) Law 2003 (the Law).  Article 64 of the Law sets out the test for unfair dismissal. 

  2. The employer is required to show a reason for the dismissal. In this case, the Claimant was dismissed because the Respondent believed that the Claimant's actions amounted to gross misconduct. The Tribunal is required to decide whether the dismissal was fair or not by considering whether in the circumstances (which includes the size and administrative resources of the business) the Respondent acted reasonably or not in treating the Claimant's actions as a reason for dismissal. We are required to make our decision in accordance with the principles of equity (fairness) and the substantial merits of the case. One potentially fair reason for dismissal is misconduct and we find that this was the reason for the dismissal.

  3. The Respondent felt that the Claimant's actions amounted to gross misconduct. Gross misconduct is conduct so serious that it justifies instant dismissal without notice. Exactly what amounts to gross misconduct will depend on the facts of each case but it must constitute an act or a series of acts, which fundamentally undermine the employment contract.  In this case, the employer was very clear that it had a zero tolerance policy towards bullying and the Claimant knew that.
  4.  If an employee is dismissed for misconduct, whether or not it was gross misconduct, the dismissal must still be fair. Where misconduct is the reason for dismissal, the test established in British Home Stores Limited v Burchell [1980] 1CR 303 applies. This test has been used many times in the Jersey Employment and Discrimination Tribunal. The test requires the employer to show that (i) he believed the employee was guilty of misconduct; (ii) he had in his mind reasonable grounds upon which to sustain that belief, and, (iii) at the stage at which he formed the belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.

  5. The dismissal will be unfair only if the employer's decision to dismiss was outside this band of reasonable responses - Midland Bank plc v Madden [2002] 2AER 741.

  6. This was a large business and we have taken that into account.  The process followed was to a good standard, as should be the case with a large employer.  We have found that the bank had a genuine belief that the Claimant was guilty of misconduct and had reasonable grounds to form that belief.  We have found that there was a good level of investigation and we find that the level of investigation was reasonable.

30. We have considered carefully whether we feel that this was a case that justified summary dismissal. We take into account the long service of the employee, and her good record but we accept the evidence of the employer that it had a zero tolerance policy, which was known to the Claimant.  The Respondent felt that they could not retain the Claimant in the workplace.  It is not for us to put ourselves in the shoes of the employer, and we cannot say that the decision was outside of the band of reasonable responses.  We accept that having made these findings, the employer could not realistically have maintained the employment.

  1. We have considered the Claimant's claim of wrongful dismissal, a claim for damages for her notice period. It is for the Tribunal to consider whether the conduct complained of in this case amounted to such serious misconduct that the employer was entitled to dismiss summarily. Although we would take a slightly more sympathetic view of the recruitment process that the employer was so concerned about, we have found that the Respondent was well placed on the evidence available to reach the conclusion that the Claimant was guilty of this gross misconduct. We find that the claim for wrongful dismissal must also fail. 

 

The Conclusion

 

We find that this was not a case of unfair dismissal.  We have found that the reason for the dismissal was the Claimant’s misconduct, a potentially fair reason.  We have considered the law.  We have found that the dismissal was not procedurally or substantively unfair in all the circumstances of the case.  We have found that the Claimant was not wrongfully dismissed.

 

We dismiss the claims.

 

 

Advocate C R Davies, Deputy Chairman                                     Date: 1 August 2018

           

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Page Last Updated: 01 Aug 2018