IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

TRIBUNAL JUDGMENT

 

Reference:                            [2020] TRE 091

 

Hearing Date:                       18-21 January 2021

 

Before:                                   Advocate Cyril Whelan, Deputy Chairman

 

Appearance:

For the Claimant:                Advocate Nuno Santos-Costa, Collas Crill

For the Respondent:           Advocate Huw Thomas, Carey Olsen

 

JUDGMENT

The claim for unfair dismissal is unsuccessful.

The claim for wrongful dismissal is unsuccessful.

 

REASONS

1.       The Claimant (“Mrs. Wilkinson“) is a senior financial services professional. She was employed as a director by the Respondent (“the company”) for some four and a half years. The company is a regulated financial services business.

 

2.       During her employment, a friendship developed between Mrs. Wilkinson and one of the company’s male clients (“the client”) for whom she and her team provided professional services. The entity associated with him is referred to as ‘P Holdings’ in this judgment. The friendship included weekends away together and, notably, a birthday present from the client to Mrs. Wilkinson of a carbon frame bicycle worth some £1,200.

 

3.       In that way, a position of conflict arose between Mrs. Wilkinson‘s personal life and the needs of  the company that employed her.

 

4.       The company has a written procedure governing conflicts of interest by which Mrs. Wilkinson, as an employee, was contractually bound. She did not follow that procedure. In failing to do so she placed the company in breach of its regulatory obligations and rendered it vulnerable in other ways.

5.       Full disciplinary proceedings took place, including an appeal, and were properly minuted. Those proceedings were unexceptionable.

 

6.       As to the statutory claim, the company says that in all the circumstances her dismissal was fair. I have reached the same conclusion.

 

7.       As to the common law claim the company has characterized the conduct as gross misconduct and again, I have reached the same conclusion. The company says that the conduct has caused it to lose its trust and confidence in Mrs. Wilkinson. I regard that outcome as practically inevitable given the facts of the case and having seen and listened to the witnesses.

 

8.       Mrs. Wilkinson says that she did not hide the fact of her friendship with the client and did alternative things sufficient to negate her breach of the company’s written procedure. I disagree about the nature and effect of those alternative things, and have found that her dismissal was neither unfair nor a breach of her contract of employment.

Friendship with Clients

9.       I preface the remainder of this judgment by emphasizing that the company has no rule forbidding friendships with clients, (Article 8 ECHR considerations might arise if it did so, but it does not). What the company reasonably required was the opportunity to manage conflicts in a way satisfactory to all involved including, in particular, the regulator.

 

10.    On the question of the relationship I am critical of persistent attempts by senior members, particularly male officers of the company to get Mrs. Wilkinson to expand on the nature of the friendship: “Was it physical?”, “Was it romantic?” I respect Mrs. Wilkinson’s repeated refusal to descend into that sort of detail. The known facts were patently sufficient to place the matter within the requirements of the conflict of interest procedure, and that should have been enough. In so far as friendships can be said to comprise a spectrum it was clear on the known facts that this friendship lay at the upper end for conflict purposes. Her refusal to be drawn into further detail has been characterised by the Company as evidence of lack of cooperation; I do not regard it in that light.

 

11.    I received submissions from counsel for the company arguing the relevance of the physical/romantic line of questioning, but was unpersuaded.

 

12.    I have had closely to consider whether questions put by management to Mrs. Wilkinson on this front have vitiated the fairness of the disciplinary investigation / hearings of which she was the subject. I have studied the papers with care and find that the relevant minutes, noticeably well kept, demonstrate that Mrs. Wilkinson remained comfortably capable of putting her case throughout and was properly listened to by those questioning her.

 

The Complaints

13.    By a claim form dated 9th June 2020, Mrs. Wilkinson brought the following complaints:

 

a)       unfair dismissal;

b)       wrongful dismissal (failure to give notice to terminate employment).

The Response

14.    By a response form presented on 2nd July 2020, the company denied the claims.

The Parties

The Claimant:

15.    Mrs. Wilkinson was employed by the company from 12th October 2015 until 24th April 2020 when her employment was terminated by a finding of gross misconduct. At the time of her dismissal Mrs. Wilkinson held the position of director.

 

16.    She has particular expertise in compliance matters and was one of the most senior people employed by the company and related corporate entities. She was a principal person and an authorized ‘A’ signatory. She was also the board member with the oversight brief on compliance matters within the company. Part of her role as director meant that she had responsibility for coaching and mentoring senior team members. This meant acting as a role model for them as regards standards and behaviours. She was part of the company’s span of control.

 

17.    It is right at this point to give a full indication of the reputation which Mrs. Wilkinson enjoyed among some of her colleagues. Emma Craggs, one such colleague, wrote to Matt Ebbrell, head of HR when this matter had become known, in terms which included the following:

 

“I would maintain wholeheartedly that in my mind Justine would never deliberately seek to mislead, cover up, or fraudulently complete paperwork for her own gain. It would be incomprehensible to me that she would compromise or jeopardize her position as a principal person with 30 years industry experience. I have worked with Justine since November 2001 and not once have I ever felt that she was anything but honest, hard-working, and supportive of our entire team and the business with which we have been employed at together during this period. With regards to the COI form itself, I recall discussion between Justine, Rebecca Taylor, and myself when Justine advised us of a friendship outside of work with the client as to whether a separate COI should be filed in order to note that we were aware of this friendship. As we were however aware that a COI had been filed and the COI register updated by the company secretary I rightly or wrongly presumed that a separate COI need not be filed.”

 

The format in which that memo is written does not enable me to note the date, but it appears in file two of the Hearing Files at tab 41 [references to those files will now be formulated thus: [2/41/ (followed by a page number where appropriate)].

 

18.    Also included in that file is a letter of 22 October 2020 from Lorraine Wheeler written in her capacity as President of the Jersey Association of Trust Companies. Among other things, she says that she has known Mrs. Wilkinson for 17 years and that Mrs. Wilkinson always acted with honesty and integrity and was a cooperative and attentive team player. It was a pleasure to work with her during the time together as directors of another company. Additionally, Mrs. Wilkinson has been a great support for the Jersey Association of Trust Companies and gives a lot of time back to the industry in which she works. [2/88] I have kept these assessments in mind throughout my deliberations on this case.

 

19.    Further, Mrs. Wilkinson has been in the financial services industry for 30 years, for almost 20 years of which she has held Principal Person status. During that time there have been no blemishes of character or reason to doubt her honesty or integrity. That is how she put it at the disciplinary appeal hearing held on Friday 22 May [2/55/2]. It was not disputed.

 

The Company:

 

20.    The company is a regulated financial services business offering trust, fund, and pension services. The evidence has satisfied me that this was a company which worked hard properly to meet the regulatory obligations to which it was subject and had good written procedures in place which had been designed to achieve that aim. It was apparent that every member of the Company who gave evidence at the hearing had a firm grasp of the principles of conflict management and took them very seriously. Regular training had been provided by the company.

What is Disputed?

21.    There is no difficulty about the events of the friendship itself between Mrs. Wilkinson and the client. It involved weekends away together in London, wining and dining and the receipt by Mrs. Wilkinson of a £1,200 carbon frame bicycle. Nothing of that is in dispute. It is not disputed that this gave rise to a position of conflict. In an email of 19th April 2020 to the dismissing officers, Mrs. Wilkinson herself speaks of her ‘conflicted position’ [2/78/1]. What is disputed is the detail of Mrs. Wilkinson‘s duty to the company in these circumstances, and the severity of the disciplinary sanction – summary dismissal. As counsel for Mrs. Wilkinson put it in opening, she had made some mistakes but the punishment did not fit the crime. Loss of employment and a finding of gross misconduct were disproportionate sanctions. What she had done did not amount to gross misconduct, he said.

 

 

Conflicts of Interest; Policy and Procedure; Mrs. Wilkinson’s Defaults

22.    The company has a written conflict of interests policy. It emphasizes the need formally to declare conflicts, it explains the risks to which non-compliance gives rise, including regulatory risk, it gives examples, one of which reads as follows:

 

“accepting a gift, benefit, or hospitality\entertainment from a client (please refer to the 4.06 gifts and benefits policy and procedure)” Counsel for Mrs. Wilkinson was to rely on this pathway, as will be seen.

 

23.    In this written conflict of interest procedure, reference is made to the governing regulatory provisions, including the Trust Company Business Code of Practice, the JFSC‘s Code of Conduct and “Dear CEO” letter. Reference is also made to the Corruption (Jersey) Law 2006 and the UK Bribery Act 2010.

 

24.    The document includes a procedure, one of the main features of which requires a person identifying an actual or potential conflict of interest to notify the company secretary within 1 working day. Mrs. Wilkinson did not do this.

 

25.    Under the procedure, the employee is required to use the conflict notification form part of which requires inclusion of details of parties affected and the proposed or already implemented risk management measures, and action taken (a specimen example is provided.) Once the form is completed the affected employee must sign and date the form to evidence their satisfaction with the proposed or actual management measures. Mrs. Wilkinson left this part of the form blank.

 

26.    Crucially, the completed form must be passed to the “employee’s overseeing director and\or the relevant client services director to evidence that those affected by, and concerned with, the oversight and management of the conflict are aware and are satisfied with the company’s management of it.” Mrs. Wilkinson did not do this or cause it to be done.

 

27.    Next, the form had to be passed to an independent director for review and sign off. The rationale and importance of this are explained. Mrs. Wilkinson did not do this or cause it to be done.

 

28.    The policy sets out examples of how conflicts could be easily managed. That part of the policy includes the following:

 

“where a particularly unusual or complex conflict situation arises, it is important to discuss the risk management measures with the Co. Sec. and it may be necessary to seek compliance advice to ensure risk management measures are adequate.”

The policy contains extensive provisions for the taking of advice, the disclosure of the conflict to all directly affected parties, and for the review and monitoring of conflicts.

29.    As a result of Mrs. Wilkinson’s conduct, none of these provisions was engaged as required by the policy. There is no dispute about the fact that Mrs. Wilkinson is contractually bound to meet the requirements of this policy and procedure. Paragraph 6.4 (d) of her contract of employment refers. [1/17/8].

 

30.    Plainly, the company placed great importance on the declaration and management of conflicts as one would expect of a reputable financial services provider in a properly regulated international finance centre. The policy is helpfully drafted, collaborative in tone and the procedure to be followed is set out as clearly as may be.

 

31.    Counsel for the company led Mrs. Wilkinson through the form, and the series of deficiencies which I have just described was apparent.

Mrs. Wilkinson’s Alternative 

32.    So much for what Mrs. Wilkinson should have done, but left undone. I now turn to what she did, and consider her proposition that what she did was an adequate alternative to following the procedure by which she was contractually bound.

 

33.    Mrs. Wilkinson claims in her written submission and evidence to have done the following things. They are set out from paragraph 9 onward of her written submission and confirmed by her in evidence. I take them from the written submission as follows:

“From the offset the Claimant discussed matters with Christine Jervier who is both the group head of compliance and risk, and the money laundering reporting officer at Fairway.

On the 18 December 2019, the Claimant sought advice from Ms. Jervier as to whether or not the Claimant had to disclose a conflict as a result of the friendship with (the client). Ms. Jervier initially advised the client that a conflict of interest form did not need to be submitted.

On 1st January 2020, the Claimant sent an email to Ms. Jervier with a view to repeating her thoughts following the discussion on 18th December 2019 in relation to the conflict of interest and also to confirm that she was adhering to Fairway’s policies. [2/64]

Ms. Jervier spoke with Matt Ebbrell, HR director at Fairway and following his response on 7th January 2020 [2/66] Ms. Jervier changed her mind and advised the Claimant that having thought about it she would like to discuss the conflict of interest further. [1/10/4.6]

Following this further discussion with Ms. Jervier, the Claimant completed a conflict of interest form. [1/23]

The Claimant sent Ms. Jervier a conflict of interest form for review on 8 January 2020 [1/23] and Ms. Jervier responded with some amendments including ticking the box for “personal relationship”, which Mrs. Wilkinson had left blank. [1.24]

Mrs. Wilkinson had, however, included this narrative on the form “FTL took on a new entity in Q2 of 2019 for which I am the Director responsible. I have been developing a friendship with an individual connected to that entity and we met up in London for a weekend at the end of November 2019. Following this, I met with Christine Jervier, MLCO, on 18 December 2019 and discussed the potential conflict of interest. At that time Christine did not think that a conflict notification was required.

We have arranged to meet up for [sic] in London for a further weekend towards the end of January 2020. As a result I sent an email to Christine on 1 January to confirm the above discussions and to notify her of our plans to meet up again later this month.

Following a further meeting on 8 January 2020, Christine recommended that I submit a Conflict of Interest Form to note the developing friendship as noted above.”

As to foreseen repercussions, Mrs. Wilkinson entered this on the form: “No foreseen repercussions at this stage as we are developing a friendship. In order to be transparent I wish to note the file accordingly.”

“On 9th January 2020, the Claimant emailed the conflict of interest form to Sara de Sa Leao [1/6/4] the company secretary for the company, noting that it been signed by both the Claimant and Ms. Jervier and requesting that it be placed on the conflict of interest register.

On the same day as the Claimant filed a conflict of interest form, she discussed a conflict with Mark Andrews, a director at Fairway. The claimant advised Mr. Andrews who the client was and of the developing friendship. The Claimant explained to Mr. Andrews that in relation to P Holdings, Fairway were not appointed directors of the entity and nor were they on the bank mandate; also, P Holdings was a fixed fee client.

The conflict of interest register was presented to the Fairway board for its quarterly meeting on 7th February 2020. As the Claimant was abroad on a business trip at the time of the quarterly meeting, she spoke with Mr. Andrews beforehand and asked that he provide the board with any details in relation to the conflict of interest which she had disclosed.

Upon the Claimant’s return to the office on 13th February 2020 she asked Mr. Andrews whether any issues had been raised in relation to the conflict of interest. Mr. Andrews confirmed that no issues or questions were raised.”

 

34.    Mrs. Wilkinson also sets out that while in the Middle East on a business trip with Graeme Fairlie she mentioned to him the gift of a bicycle which she had received and together they looked up the company’s handbook and found that while gifts from clients are mentioned, personal gifts are not.

 

35.    Even supposing that these things could sensibly be taken as an alternative respectively to the requirements of the Conflicts of Interest and Gifts and Business Benefits policies, should what Mrs. Wilkinson says be taken at face value? To examine that, I turn to the detailed evidence of those named by her. I see no alternative, despite the effect on the length of this judgment.

Christine Jervier

36.    The statement and evidence of Christine Jervier are to the following effect. She joined the company in 2016 and her job is Global Head of Compliance and Risk Management. Throughout her time with the company she has known Mrs. Wilkinson who was the lead director (oversight) for all compliance matters. She worked closely with Mrs. Wilkinson reviewing group policies and procedures. Mrs. Wilkinson was also mainly responsible for reviewing and approving any group policies and procedures. In fact it was Mrs. Wilkinson who had reviewed and approved the Conflict of Interest policy and procedure. Her knowledge of regulation was excellent, and she  was the company’s representative on the Jersey Association of Trust Companies. Mrs. Wilkinson would consult with Mrs. Jervier about potential new business, and on any matters raised in connection with existing clients. Mrs. Jervier would also seek Mrs. Wilkinson’s opinion on compliance matters and new regulatory requirements. They would discuss these things routinely.

 

37.    Mrs. Jervier says that she and Mrs. Wilkinson had a good relationship and would occasionally meet outside work for dinner and a drink and to discuss aspects of their respective private lives. They occupied a comparable level at the company; neither was senior to the other.

 

38.    This question of the rank of their respective posts was to be addressed later in the hearing by those at the head of the company. Alistair Rothwell and Mrs. Bracken-Smith gave evidence to like effect on this point. As to the comparative positions of Mrs. Jervier and Mrs. Wilkinson within the organization, Mrs. Wilkinson was senior. Mrs. Jervier reports to the Board of Directors of which Mrs. Wilkinson is a member. Mrs. Wilkinson is the director with the special remit for compliance (other directors have a special remit covering other areas of the business – IT and Business Development were given as examples). Mrs. Jervier was subordinate to Mrs. Wilkinson and all other directors. She reported directly to Mrs. Bracken-Smith as regards one-to-one management.

 

39.    I interpose to say that among the emails in the main file is one signed off by Mrs. Wilkinson to Mrs. Jervier with a friendly kiss. I take this to support Mrs. Jervier’s description of the friendly relationship between them. [ 2/65/1] 

 

40.    Mrs. Jervier goes on to say that staff receive six monthly reminders via email of the Gifts and Business Benefits policy and procedures. Moreover, all staff receive bribery prevention online training on an annual basis. Staff must complete an annual staff declaration directed to the various company policies and procedures. All staff must declare their awareness and understanding of the policies.

 

41.    The evidence of Mrs. Jervier went on to show that 18th December 2019 was her last day in the office before Christmas annual leave. That was the day of her Christmas team lunch and on her return to the office at around 3pm Mrs. Wilkinson asked to speak to her. She replied that she was under some pressure to complete tasks before leaving for the holidays. Mrs. Wilkinson appeared quite emotional, so Mrs. Jervier relented and they went to a coffee shop near the office at Mrs. Wilkinson‘s suggestion. This was unusual as they would normally meet within the office.

 

42.    During the meeting Mrs. Wilkinson was tearful. She wanted advice on whether she should declare a conflict of interest. She explained that in November 2019 she had been on a weekend away with someone whom she had originally met as a client of the company. She said that she was “developing a relationship with him” but at this time it was in a purely professional capacity nothing more. I interpose to say that the contradiction is self-evident, if indeed that is what was said.

 

43.    It transpires that Mrs. Wilkinson was talking about the client and P Holdings. She says that Mrs. Wilkinson did not tell her that the client was a director of P Holdings, or name him; Mrs. Wilkinson’s evidence was that she did.

 

44.    She went on to tell Mrs. Jervier that the company provided only limited services to P Holdings, providing no more than company secretary and registered office services. The company did not provide directors of the entity and had no bank account mandate. Mrs. Wilkinson was not in a position to influence the affairs of the entity in question. In those circumstances Mrs. Jervier told Mrs. Wilkinson that a conflict of interest form was not needed.

 

45.    On 1st January 2020, Mrs. Wilkinson emailed Mrs. Jervier from her personal email address summarising the conversation which had taken place between them on 18 December in the coffee shop, adding that the client had invited her to London for a second weekend together, planned for late January 2020.

 

46.    Mrs. Jervier felt uncomfortable with the position and on her return to the office after Christmas leave, she spoke with the head of HR, Matt Ebbrell. His view was that Mrs. Wilkinson should complete a conflict of interest form and that it should be processed in accordance with the  conflict of interest procedure. He confirmed this in an email of 7th January 2020. [2/66] Accordingly, Mrs. Jervier emailed Mrs. Wilkinson that same day to tell her that she should complete a conflict of interest form.

 

47.    That same day Mrs. Jervier and Mrs. Wilkinson met to discuss the conflict of interest. Mrs. Jervier advised that the account should be moved to another director within the firm to remove the conflict of interest. Mrs. Wilkinson replied that the client had said that if this happened, he would transfer the account to another service provider.  I interpose to say that Mrs. Wilkinson said the contrary in an email of 19th April 2020 to the dismissing officers [2/78/1].

 

48.    During this meeting Mrs. Wilkinson said that she had let two members of her team know the position about the friendship. Mrs. Wilkinson also said that the client was not a director on the  client entity account. She still had not named him.

 

49.    On about 9th January 2020 Mrs. Wilkinson sent Mrs. Jervier a conflict of interest form, part of which she had filled in. Mrs. Jervier reviewed it the same day but noticed that some of the information was missing – the box for “personal relationship” was not ticked and information about what warning would be placed on the company’s client data system [NavOne] was also missing. The form noted that members of Mrs. Wilkinson’s team were aware of the friendship with the client and that Mrs. Wilkinson would not be required to sign on behalf of the entity or to release payments.

 

50.    Mrs. Wilkinson approached Christine Jervier at her desk and asked her to sign the conflict of interest form. Christine Jervier describes this as ‘unusual’ because normally the relevant director would sign the form. I interpose to say that this was an express requirement plainly set out on the form.

 

51.    Mrs. Jervier told Mrs. Wilkinson that she should get a director or her line manager Mrs. Bracken - Smith to sign it as well, before submitting it to the company secretary in accordance with the procedural requirement. Mrs. Wilkinson replied that she did not want to be asked any questions by Mrs. Bracken - Smith about the relationship or to give any personal details. Mrs. Jervier went ahead and signed the form and, in her evidence, accepts that in hindsight she should not have done so. The evidence demonstrates that she has since been disciplined by the company for having done so.

 

52.    On about 13th of February 2020 on returning from a business trip Mrs. Wilkinson discussed with Mrs. Jervier having received a bicycle from the client - again not mentioned by name – and told her that it was a birthday present sent to her home address. She gave the example of some wine having previously been declared on a conflict of interest form and said that at the time a distinction had been drawn between gifts sent to the office and gifts sent to the home address. The latter were to be regarded as personal gifts and would not need to be declared. Mrs. Jervier says that she would not expect a Director to mislead her and did not question the matter further. No declaration was made in respect of the bicycle which, it will be recalled, cost some £1,200 pounds.

 

53.    On 2nd April 2020 Mrs. Jervier received an email unexpectedly from Mrs. Wilkinson asking her to confirm the conversations outlined above. [2/74]

 

54.    Four days later, on 6 April 2020 Mrs. Jervier was interviewed by Alastair Rothwell, Chairman of the Fairway group of companies, as part of an internal investigation. Following that investigation she realized that Mrs. Wilkinson had not been completely open with her. Mrs. Wilkinson had given her the impression that other team members would deal with the day-to-day running of the account. She had never named the client and it was only during the investigation that Mrs. Jervier became aware of his identity. She says this: “I feel that she used and manipulated me because of my personal friendship with her – I based my decisions on what she told me as a director. It was only during the investigation that further information was disclosed to me.”

 

55.    She goes on to say that around May 2018 the client file review showed that the P Holdings account had discrepancies in the take-on. The source of wealth and source of funds details for the client were missing, the business rationale was unclear and not reflected in the tax advice received, various documents had not been signed, not enough information was held regarding the business or its assets and there was no list showing the comprehensive portfolio of properties under management by the P Holdings structure. Mrs. Jervier remarks that this was unusual as Mrs. Wilkinson always maintained high standards with her other clients. These faults have now been corrected and another director is responsible for the account.

 

56.    I interpose to point out that in evidence it emerged that take-on arrangements were dealt with by a team of people, including the New Business Committee. The blame for any defects could not fairly be attributed exclusively to Mrs. Wilkinson. What is more, Mrs. Wilkinson had received an email from Mr. Rothwell itemising the alleged deficiencies; she had replied with reasoned answers in a document of her own. I asked for that document to be produced at the hearing; it was, it forms part of the evidence, and I have taken account of it.

 

57.    At this point, then, there is evidence of a form signed by a person with no authority to sign it, unaware of all the facts, in particular the client’s identity and status within the client structure, a friend who had been approached to depart from the required procedure, in respect of a client structure about which there was insufficient information.

 

58.    At the 18th December coffee shop conversation, Mrs. Wilkinson had mentioned the November trip away but was emotional and Mrs. Jervier thought that she just needed a friend to talk to. Mrs. Wilkinson gave her no background information – no name was volunteered and no mention of the fact that the person in question was a Director of the client entity. Had she known that a Director was the person Mrs. Wilkinson was speaking about, Mrs. Jervier’s reaction would have been very different, she said in evidence.

 

59.    On her return to work after the Christmas holiday, she received the email sent by Mrs. Wilkinson as a record of the coffee shop meeting, felt uncomfortable with it and consulted Mr. Ebbrell, but without naming Justine Wilkinson.

 

60.    When a conflict of interest form was to be filed eventually, Mrs. Wilkinson had come to her desk and asked her to sign because no other directors were around. Mrs. Jervier had done so.

 

61.    On the question of the bicycle Mrs. Jervier did not know why Mrs. Wilkinson had approached her, but on the latter’s account that gifts sent to a personal address did not need declaring, Mrs. Jervier had accepted that no gift declaration need be made. Mrs. Wilkinson was a Director, had always had high standards and Mrs. Jervier did not believe that she would mislead her. It was a case, said Mrs. Jervier, of having to drop what you were working on in order to listen to Mrs. Wilkinson. I find as a fact that Mrs. Jervier did not know the name of the client or his status vis a vis the client entity.

 

62.    The form, such as it was, was passed to the company secretary, and it is at this point that the evidence of another director, Mark Andrews, becomes relevant.

 

 

Mark Andrews

63.    He recalls that on 9 January 2020 he and Mrs. Wilkinson had been to lunch with a client, a lunch which included a couple of bottles of wine shared between four people. He says that when walking back to the office from that lunch Mrs. Wilkinson told him that she was building a relationship with a third-party that she had met through the office. She said that the person concerned was not an actual client of the company but was “more an intermediary” I interpose to say that at the hearing, Mrs. Wilkinson denied having said that.

 

64.    Mr. Andrews recalled a general discussion with Mrs. Wilkinson confirming that a conflict of interest form had been submitted. He does not remember discussing the name of the client structure or the individual to whom Mrs. Wilkinson was referring. He does not recall any mention of trips to London.

 

65.    Later that afternoon, he recalls a brief discussion about the conflict of interest and that Mrs. Wilkinson would be away at the time of the next board meeting. He says this:

 

“I don’t recall the exact conversation or whether I’d been asked to provide more detail should it come up at the board meeting. I do know, however, that if I had, I would’ve received the conflict of interest prior to the meeting and made notes etc. so I would’ve been prepared.”

 

66.    His evidence about the company’s board pack for the quarterly meeting is that it would run to some 250 pages and his practice was to pick out what was relevant to his role.

 

67.    In the event, the conflict of interest was not discussed at the February board meeting, and Mr. Andrews cannot remember whether Mrs. Wilkinson followed up with him on her return from the business trip which had kept her away from the board meeting.

 

68.    Sometime after that, Mr. Andrews recalls another informal conversation in the kitchen at work. On that occasion Mrs. Wilkinson mentioned having received the gift of a bicycle from the client and Mr. Andrews recalls saying: “make sure it’s declared and follow the procedures.” The conversation did not go much further than that because Mr. Andrews was not Mrs. Wilkinson’s line Manager:

 

“Mrs. Wilkinson was the director in charge of compliance. I used to go to her for compliance advice, so I didn’t feel it was necessary for me to say more than I did.”

When she mentioned the bicycle during the kitchen conversation Mr. Andrews still understood that it had come from ‘an intermediary’ and not a client. Mr. Andrews gave evidence that having mentioned the need to follow the procedures, he had no interest in the matter.

69.    He also gave evidence that there were quite informal Directors’ meetings at work from time to time over sandwiches. Mrs. Wilkinson attended these but had never, to Mr. Andrews’s knowledge, mentioned the client or the conflict.

 

70.    I find as facts that Mr. Andrews was not asked to provide extra information to the February quarterly board meeting should the need arise; that he advised Mrs. Wilkinson to declare the gift of the bicycle and to follow the necessary procedures; that she described the client to Mr. Andrews as not a client but more an intermediary; that she attended the directors’ informal sandwich lunches from time to time.

Graeme Fairlie

71.    The evidence of Graeme Fairlie is relevant at this point. He is the business development manager of the company and says that he knew Mrs. Wilkinson socially even before she joined the company. “We had a good relationship as we knew each other quite well and were chatty when we were together.”

 

72.    He speaks of a business trip to the Middle East together. In his statement, he speaks of a conversation during which Mrs. Wilkinson became very emotional and spoke about a client of hers. In the course of the evidence he spoke of tears in her eyes as she spoke of the gift of a bicycle and not knowing what to do. He regarded this conversation in a hotel lobby in Oman as Mrs. Wilkinson confiding in him as a friend and colleague because she did not know what to do about an expensive gift coming from a client. He knew the identity of the client

 

73.    Mr. Fairlie went on to say in evidence that he is not a compliance man, his field being business development, but to try to help her in her emotional state he suggested that they check the company’s Gifts Policy. They did so by going online to the company’s intranet together. He did this out of friendship and care for Mrs. Wilkinson’s wellbeing. They read the Gifts and Business Benefits Policy together. It was clear that client gifts had to be declared. The client was a client and she was the Director working on the account. It seemed plain to Mr. Fairlie, but as he put it in evidence “Why ask me? I’m just the business development guy.” In any event he told her that if she declared the gift, she would be doing the right thing. She thanked him, and he left her to do the right thing. They agreed that she would need to follow the procedure and declare the gift to protect herself.

 

74.    He recalls her mentioning a trip to London with the client and talk of opera, champagne and dinners. It seemed to him that more and more ‘red flags’ were appearing, and he believed that Mrs. Wilkinson would do the right thing and follow the company’s policies and procedures.

 

75.    During this conversation Mrs. Wilkinson told him that the client had given her a bicycle and that she felt compromised. She mentioned:

 

“Other gift of sorts, for instance, she and the client had a trip to London during which he hired out of box at the Opera. There were four seats in the box but just the two of them attending. She also said they had stayed at a hotel; it wasn’t clear if they had shared a room and I didn’t pry. But I recall her saying something about him buying her a very expensive glass of champagne for around £70, which she seemed to be very impressed about. She spoke fondly of the client and I had the impression she cared about him.”

 

76.    Of particular surprise to him had been Mrs. Wilkinson’s account of having collected the bicycle from the shop and having taken it home without declaring it. His approach would have been to leave it where it was and gone to his line manager, such would have been the direction set by his moral compass, as he put it. Mr. Fairlie told her that given that she had already accepted the bicycle she would need to disclose it. She replied that she agreed and said words to the effect that she would do so.

 

77.    Mr. Fairlie’s indignation and hurt at having been drawn into this matter by Mrs. Wilkinson’s approach to him were apparent as he gave his evidence. This whole business had nothing to do with him and he had simply tried to help and advise her at a time of her evident distress, he said.

 

78.    They returned to Jersey and shortly after Mrs. Wilkinson went on a family holiday to Mexico. Mr. Fairlie assumed that she had declared the gift of the bicycle. He produced in evidence a WhatsApp exchange around February 2020. His part reads: “hey – that’s good news, you did the right thing and all is fine. Nothing to worry about – go and enjoy your holidays X.” Her part reads: “it is good news. I chatted to the client about it yesterday and then spoke to Christine this morning and she says it is all blown up and is a non-issue for her. Just wanted to let Mark know as he had signed off the conflict form with me X.” [ 2/90] Once more, an exchange of friendly kisses gives some indication of the relations between them.

 

79.    Clearly, Mr. Andrews had not signed off the conflicts form with Mrs. Wilkinson. She explained during the course of her evidence that rather than an untruth this was a typographical error – ‘he’ should be read as ‘she’.

 

80.    Shortly after Mr. Fairlie’s return from the trip abroad, the Company’s finance department called him to say that Mrs. Wilkinson had a large roaming bill on her telephone and when questioned about it she said it was because he, Mr. Fairlie, had been on her phone. He told finance that he had not used her phone he had no reason to do so. An itemized bill showed that the charges were actually incurred during Mrs. Wilkinson’s family holiday trip to Mexico. She paid what was necessary and nothing further came of it. The only significance of this incident is the part which it plays in the continuing narrative as follows.

 

81.    On about 20th of March 2020 during a casual conversation out of hours with Alastair Rothwell about the telephone bill Mr. Fairley said something along the lines “you know how it started though, right? Justine had been given a present of a bike from the client, so we went on to check the company‘s policies and procedures.” Mr. Rothwell clearly had not known about this and Mr. Fairley was shocked that this should be so, and told him that he thought it had been declared. It became clear that no disclosure has been made about the gift.

 

82.    I find as a fact that Mr. Fairlie and Mrs. Wilkinson consulted the Gifts and Business Benefits policy online together and that Mr. Fairlie advised Mrs. Wilkinson to follow the Gifts policy and declare the gift of the bicycle; I find as a fact that she did not do so.

Matt Ebbrell

83.    Matt Ebbrell is the Chief Operating Officer of the company; at the material time he was head of HR. His evidence is that he has enjoyed a good working relationship with Mrs. Wilkinson. He was one of the dismissing officers, and Mrs. Bracken-Smith was the other. He confirmed Mrs. Jervier’s evidence as to the advice sought by her and given by him.

 

84.    The Conflicts of Interest form is a protective measure for both the company and the individual. While filling in the form did not remove the conflict, it enabled the Company to be aware of it and to take appropriate measures to manage it. He pointed to the defects already described, and said that given Mrs. Wilkinson’s known capabilities – she was very good at her job – he found it difficult to accept that these errors were unintentional.

 

85.    He and Louise Bracken-Smith had been the dismissing officers and in looking for mitigating circumstances so that alternative sanctions could be considered he had found none. Mrs. Wilkinson’s post and background were very senior and this gave rise to high level expectations which had not been met.

 

86.    Mr. Ebbrell was taken to the Gifts and Business Benefits Policy [1/16/2; para (b)] it is in these terms:

 

“In the event a staff member receives a gift above the threshold [£150] or has in the last 3 months received gifts which cumulatively surpass the de minimus value they must inform Compliance (also using the notification Gifts and Benefits Notification Form attached below)”.

 

Counsel for Mrs. Wilkinson submitted that the obligation on Mrs. Wilkinson had been to notify compliance about the gift and that is what she had done – indeed she had notified the Head of Compliance. However, it is clear again that a procedure had to be followed by use of a particular notification form. Mrs. Wilkinson did not follow that procedure. The bicycle was never declared under the Gifts and Business Benefits policy.

 

87.    Mr. Ebbrell had become aware from Mrs. Jervier that Mrs. Wilkinson / the Client wanted to keep the friendship confidential and he was prepared to explore whether this wish for confidentiality and the reporting needs of the company could both be accommodated, for example by the use of Chinese walls. The requisite reporting measures still needed to be in place.

 

88.    It was put to Mr. Ebbrell by counsel for Mrs. Wilkinson that only two people were involved with the client structure, one of them a female. It followed that when Mrs. Wilkinson spoke about a friendship ‘with an individual connected with that entity’, it was not difficult to establish who that was, or the position he occupied.

Mrs. Bracken-Smith

89.    At this point I turn to the evidence of Mrs. Bracken-Smith. I do so firstly for an appreciation of the risk involved in Mrs. Wilkinson’s approach to the conflict situation. Mrs. Bracken - Smith is the current Chief Executive Officer of Fairway group and, among other directorships within the group, she is a director of the company. She describes Mrs. Wilkinson as a director of the company and therefore part of the span of control with other directors of the company board. Mrs. Bracken – Smith describes Mrs. Wilkinson as one of the most senior employees in the company, a principal person, and an ‘A’ signatory. She says that Mrs. Wilkinson was the appointed compliance - facing director on the board. Mrs. Wilkinson was also responsible for drafting and approving policies and procedures with Mrs. Jervier and she had specific responsibility for the business risk assessment, a key document outlining the risk appetite of the business. Mrs. Wilkinson was also involved with training staff on new policy and procedures, the new business take - on process, and assessment of risk.

 

90.    Mrs. Bracken-Smith describes the Conflict of Interest policy and Gift and Benefits policy as critical. She says this:

 

“As a regulated financial services business i.e., regulated by the JFSC for among other things trust company business and insurance mediation business, and as a service provider, all employees are susceptible to money laundering and bribery risks. All members of staff must declare any gifts from client (sic) because for instance they could become subject to bribery and corruption and which could be a criminal act and carry a custodial sentence. Additionally clients could potentially bribe service providers to encourage preferential treatment. As a service provider we must remain independent and act in the best interest of the business.

Our regulated status means that we are required to act with integrity and in accordance with the Codes of practice issued by the JFSC. Our core values are positive, authentic, commercial, and trusted. All staff must comply with policies and uphold these values.

Linked to the above and to the fact that independence is integral to our business it is essential that the board have an open and transparent dialogue between them so that they can trust each other. In order to do this, the board must be given the opportunity to mitigate the risk of any conflict of interest by having full disclosure. Failure to comply with the conflict of interest and Gift and Benefits policies was therefore a disciplinary matter.

All staff are trained on the relevant compliance policies and surrounding issues. There is also online training for all staff for bribery and corruption reminding staff of the rules and regulations. Justine has completed this training.” [1/12/2]

91.    Mrs. Bracken - Smith goes on to describe her relationship with Mrs. Wilkinson. She was Mrs. Wilkinson’s direct line report and they had regular meetings involving just the two of them. The meetings did include inquiries about Mrs. Wilkinson’s personal well-being and Mrs. Wilkinson would frequently get upset and tearful during the meetings. Mrs. Bracken - Smith knew that Mrs. Wilkinson had a lot going on in her personal life with an acrimonious divorce and the trials of being a single mother. She says that she was very sympathetic and supportive towards Mrs. Wilkinson because she was a key member of the leadership team. She felt the relationship was good and characterized by open dialogue. Sometimes Mrs. Bracken -Smith had to relay negative feedback to which Mrs. Wilkinson did not respond well but Mrs. Bracken - Smith did her best to support Mrs. Wilkinson. She gave examples of ways in which she had tried to support her, including the company paying for personal coaching/mentoring for Mrs. Wilkinson.

 

92.    I interpose to say that contained in the main file is an exchange of correspondence between Mrs. Bracken - Smith and Mrs. Wilkinson which very much demonstrates the former’s account of offering complete support to the latter. [1/22] Equally, at the hearing, Mrs. Wilkinson produced an email of 2017 in which Alistair Rothwell referred to unacceptable behaviour by Mrs. Bracken-Smith towards Mrs. Wilkinson which had included a ‘verbal lashing’. Mrs. Bracken-Smith was unable to recall the occasion without being given a context but whatever had happened it would have been an anomaly in a long pattern of support. She relied on the examples which she had given.

 

93.    Mrs. Wilkinson gave evidence that Mrs. Bracken-Smith was changeable and not someone with whom she enjoyed an easy relationship.

 

94.    There is a need to use the phrase again: Mrs. Bracken-Smith gave Mrs. Wilkinson a verbal lashing throughout the course of her evidence to the Tribunal and had difficulty holding her invective in check.

 

95.    Having seen and heard from both ladies I have sympathy for the proposition that Mrs. Wilkinson might not have thought of Mrs. Bracken-Smith as the easiest person with whom to have the necessary conversation about the conflict.  As against that, Mrs. Bracken-Smith gives evidence that Mrs. Wilkinson had previously asked her to sign off on her personal conflict of interest forms as a relevant director. She recalls signing two such forms in 2017. This accords with the evidence of Mr. Rothwell. These forms did not, though, concern personal sensitivities.

 

96.    That does not provide Mrs. Wilkinson with an answer – nothing prevented her from taking the matter to another director; nor does it mean that Mrs. Bracken-Smith gave evidence of no value. I have already referred to her evidence of the company’s strong approach to its regulatory responsibilities.

 

97.    Mrs. Bracken-Smith recalls an issue over the gift of bottles of wine of which much was heard over the four days of the hearing. The client sent them to Mrs. Wilkinson (and an identical gift to one other) at the office by way of thanks for the work they had done for him. Mrs. Wilkinson was not going to share hers with the team, saying that they were a personal gift. Mrs. Bracken-Smith replied that had they been just for her they would have been sent to her private address. Mrs. Bracken-Smith observes with emphasis that this does not mean that the gift would not need to be declared.

 

98.    In addition to the shortcomings on the conflict of interest form identified by other witnesses, Mrs. Bracken-Smith points to its lateness. It should have been filed the moment the client became a client of the company. In fact the form, such as it was, was not presented until months later.

 

99.    She also describes the disciplinary process and the decision taken by her and Matt Ebbrell summarily to dismiss Mrs. Wilkinson at its conclusion. She speaks of the breach of the policies which could have had serious ramifications with the JFSC as regulator; she speaks also of a complete loss of trust.

 

100.   In the latter regard, she records her view that throughout the process it appeared to her that Mrs. Wilkinson had tried to divert the blame onto colleagues – Mrs. Jervier for the compliance advice (despite the fact she did not have the full facts); Mark Andrews for not having disclosed the conflict of interest to the board (despite him not being fully aware of the situation); Graeme Fairlie (who tried to help her with the policies and procedures). At the hearing, she described Mrs. Wilkinson as having tried to cover up the truth because of her greed – she wanted to keep the client as a matter of business in order to keep her revenue figures up, she wanted to keep the gift, and she wanted to continue the personal relationship with the client.

 

101.   In answer to counsel she described how the form should, and might easily, have been completed. Even the most junior member of staff could be expected to have understood the obligation, she said. It was true that the entry on the conflicts register went before the Board at the February board meeting, but Mrs. Bracken-Smith regarded this as Mrs. Wilkinson’s attempt to slip it through, under the radar.

 

102.   Mrs. Bracken – Smith  goes on to say that she is not aware of any other member of staff being disciplined or treated differently from Mrs. Wilkinson for failing to declare a conflict of interest; nor is she aware of any material dealings in relation to the Conflict of Interest or Gift and Benefits registers where matters had not been fully disclosed.

 

103.   She concludes by saying that cost cutting was never a consideration in the dismissal of Mrs. Wilkinson. The latter ran a very successful portfolio and was responsible for 6 team members. The costs incurred in dealing with the investigation and disciplinary processes far outweighed the costs of keeping Mrs. Wilkinson on the board. In addition, her dismissal would put additional strain on the remaining directors of the company. The directors never discussed Mrs. Wilkinson’s management shareholding as a reason for her dismissal.

 

104.   I find as a fact that cost-cutting played no part in the decision summarily to dismiss Mrs. Wilkinson.

 

 

Alastair Rothwell

105.   I turn next to the evidence of Alastair Rothwell, who is a shareholder and the Chairman of the Fairway Group. He is also a member of the Fairway group risk committee. In his role as chairman, he is responsible for the group’s strategic direction. He confirms that the company is a regulated business and is required to have various policies and procedures in place and to comply with legislative and regulatory requirements. This is in addition to the core values to which the company subscribes as a business, values of openness, honesty, and transparency.

 

106.   He confirms that the events now under discussion came to his attention only informally in a social context as described by Mr. Fairlie.

 

107.   He emphasizes the crucial nature of the relevant policies and procedures - the requirements under legal and regulatory rules; the need for presentation and tabling of conflicts at board meetings, giving the Board of Directors the opportunity to review and discuss all such disclosures. In addition, the procedures help to ensure all parties to a conflict of interest or a gift issue are fully aware of the implications; and that there is in place a clear document trail to prove to third parties, for example the JFSC, that the company is complying with its obligations and all other parties are protected.

 

108.   He describes how limited services engagements of the sort undertaken with P Holdings presents a higher level of risk, in the sense that the company is not providing executive services such as being on the board of the company. It is potentially unsighted on the administration of the company and does not manage either the receipts or payments. That situation means that there is an inherently higher risk of money laundering and / or terrorist financing. This higher risk can be effectively managed by additional controls, for example enhanced due diligence at take - on and enhanced monitoring during the lifetime of the relationship. In this case, Mrs. Wilkinson gave the company no opportunity to control matters in this way, or at all.

 

109.   Moreover, Mr. Rothwell said that his investigatory work on P Holdings showed a pattern of one to one contacts between Mrs. Wilkinson and the client on business matters.

 

110.   He notes that during interviews, Mrs. Wilkinson tried to allege that the limited services relationship meant that she had no real involvement in the client structure. She also said that the client was different from other clients due to his shareholding on declaration of trust, together with the fact that he resigned as a director of P holdings in January 2020. In fact, Mr. Rothwell says, the client remains relevant as joint ultimate beneficial owner of the client company and continued to have day-to-day involvement with it.

 

111.   Mr. Rothwell enumerates the faults which he found in Mrs. Wilkinson‘s conduct: the conflict of interest was not notified immediately; the form eventually submitted was incomplete; the form was signed off by an unauthorized person; Mrs. Wilkinson did not discuss matters with Mrs. Bracken-Smith, her line manager; the gift of the carbon frame bicycle was not disclosed; her account of discussing matters with other directors and members of staff was insufficient given that nobody she mentioned had received the full facts; the client’s indication that if Mrs. Wilkinson was removed from his account he would take his business away from the company was never disclosed to the board.

 

112.   Mr. Rothwell repeats that the impact of nondisclosure on the company could have had huge regulatory implications. The correct administration of a conflict of interest is fundamental to proper governance and regulatory accountability. It is the subject of numerous commentaries from the JFSC and specific “Dear CEO” letter guidance.

 

113.   The magnitude of the irregularities surrounding the issues being discussed led Mr. Rothwell to call in an experienced ex-JFSC compliance specialist who works for the company on a contract basis. Mr. Rothwell passed over all his work and comments on the matter on 14 April 2020 so that a deeper investigation could take place.

 

114.   Mr. Rothwell confirms that cost cutting played no part whatever in the decision summarily to dismiss Mrs. Wilkinson.

 

115.   He spoke of the relationship between Mrs. Wilkinson and Mrs. Bracken-Smith. He described the latter as supportive of the former and only wanting the best out of her. His apologetic email of 27th October 2017 was put to him. It includes the following:

 

“Would I be right in concluding that you just came out of the meeting feeling shredded by Louise’s verbal lashing and left basically discouraged and disconsolate? I don’t actually have the answers to sorting it in any easy way but I’m really sorry she acted like this – it isn’t the behaviour we expect from anyone in the business, let alone a senior member of staff. I honestly don’t think she realizes the aggressive manner in which she comes over and how demoralizing this is for anyone on the receiving end of it.”

 

116.   I have already noted that it is equally true that in evidence was an entirely supportive email to Mrs. Wilkinson from Mrs. Bracken-Smith some two years or so later showing absolute support.

 

117.   Mr. Rothwell gave evidence that Mrs. Wilkinson struggled to keep her personal life separate from her business life. He described the ‘verbal lashing’ as having been ‘brutal’ and copied to HR his email of apology to Mrs. Wilkinson, in case she wanted to take the matter further. She had not done so.

 

118.   In 20 years’ business experience, Mr. Rothwell had never experienced a conflict of this nature but described how easily it could have been managed to the satisfaction of all, had the facts been transparently disclosed. He gave readily comprehensible examples. Mrs. Bracken-Smith would have helped Mrs. Wilkinson, he said, ‘she had her back’.

 

119.   He describes the limited services to P Holdings as including nominee shareholder arrangements. He points to the fact that on a £5,000 fixed fee service agreement, Mrs. Wilkinson had accumulated work in progress fees of some £25,000 which had been written down to £15,000. This indicated an involvement by Mrs. Wilkinson in areas of client business in which there should have been none.

 

120.   He went on to describe Mrs. Wilkinson as ‘intellectually superior’ to Mrs. Jervier in the matter of compliance, and Mrs. Wilkinson should not have involved her in the way she did. I interpose to say that my own observations during the hearing suggested to me that Mrs. Jervier was nothing like as assertive and self-assured as Mrs. Wilkinson.

 

121.   Mrs. Wilkinson had completed these pro forma declarations in the past, always properly, and in fact Mrs. Bracken-Smith had signed such forms when presented by Mrs. Wilkinson. The present episode was ‘way out of line’. He spoke of the heavy emotional toll which the episode had taken on Mrs. Jervier. Mr. Rothwell described Mrs. Wilkinson as a person of very great senior experience, occupying a position at the top of the firm; there had been no reason for her to have drawn Mrs. Jervier in as she had done.

 

122.   He too spoke of the informal director sandwich lunches, which do not involve Mrs. Bracken-Smith, which would have been a perfect forum for Mrs. Wilkinson to make full and frank disclosure of the conflict position.

 

123.   Mr. Rothwell said that he had concluded that Mrs. Wilkinson’s conduct in the whole matter had amounted to deliberate deception. He had feared that money laundering might actually be taking place. Certainly, there was breach of the Regulatory Codes of Practice, which could lead to a regulatory sanction, particularly given the seniority of Mrs. Wilkinson. It was on this basis that he had referred to the matter as ‘incredibly serious’ more than once during the course of the hearing.

Cross- examination and re-examination of Mrs. Wilkinson

124.   Although she was the first witness to give evidence at the hearing, the flow of argument has been best described by recounting her evidence at this point of these reasons. Counsel for the Company had opened his case by saying that Mrs. Wilkinson had a particular expertise in compliance. It was the Company’s case that she was aware of the rules but chose not to follow them. The sanction adopted by the Company had been proportionate.

 

125.   Counsel put it to Mrs. Wilkinson that there was no room for confusion between a client gift and a gift from a client who was a friend. It would mean that if an exception were to be made in that way it would be easy to categorize any gift as personal, opening the door wide to bribery and corruption. Mrs. Wilkinson agreed that structurally that might be so, but the question was one of personal integrity and hers was of the highest. In any event she had no control over P Holdings, given that the Company provided only limited service. These were to be key arguments of hers throughout, together with the stance that if gifts / hospitality were received in the context of a personal friendship they were not properly to be categorized as being received from a client qua client. They were given within a personal and private friendship – witness for example that the bicycle had not been delivered to the workplace. She referred to the time when Mrs. Bracken-Smith had taken her to task for not sharing wine given to her by the client (which she had declared on the Gifts register) saying that had it been a personal gift to Mrs. Wilkinson it would have been delivered to her home. She agreed that limited service client entities were in the highest risk category.

 

126.   Counsel put it to her that there was conflict on three fronts: commercial (potential reluctance to have difficult conversations about service provision and charges); crucially, potential difficulties as regards AML and a possible diffidence about making Suspicious Activity Reports as well as tipping-off possibilities; duties to the other beneficial owner of P Holdings. Mrs. Wilkinson accepted those categories but repeated that her standards and integrity were of the highest so that these were never practical issues.

 

127.   The Client had resigned as a director of P Holdings in January 2020 because he did not want to be named on a public register; he was a ‘private person’ said Mrs. Wilkinson. Asked by counsel if this should have raised a red flag with her as regards AML, she replied that she didn’t know.

 

128.   On the annual personal declaration form which she was required to fill in she expressly certified that she had received no gifts or hospitality [1/25/3]. Again she replied that she had regarded these things as non-declarable because they were given in the context of a personal friendship. Moreover, why should she be singled out? Graham Fairlie, for example, had been entertained by a client at the Bahrain Grand Prix and had not declared it. This was not put to Mr. Fairlie and I gave it no weight.

 

129.   Counsel put it to her that the hospitality given to her in London over two week-ends including hotel stays and a box at the opera, together with the gift of a £1,200 bicycle ran to the value of thousands of pounds. Mrs. Wilkinson did not demur but insisted that these things came about between friends in her personal time.

130.   Counsel took her through the steps which she had missed out on the Conflicts of Interest form, pointing out the considerable deficiencies. She replied that no one had come back to her querying it. Counsel put it to her that the responsibility was hers, and it was not for others to investigate the form and cross-examine the facts from her.

 

131.   Counsel put the Company’s case squarely to her, that she had done the minimum she could in the hope of slipping the matter past further scrutiny by the company. She was referred, as an example, to a document (74/) in which she had told Mark Andrews that the Client was not a director. She accepted that it was misleading but it had not been her intention to deceive Mr. Andrews or the company at any time.

 

132.   As for pressuring Mrs. Jervier into signing the Conflicts form, they were peers in the Company and she was not placed to exert pressure. If Mrs. Jervier were open to pressure of that sort, she would be a poor money laundering guardian – which she was not.

 

133.   She accepted that Graham Fairlie had told her to declare the bicycle on the gifts register, but panicked by this, she had instead gone to see Mrs. Jervier.

134.   Mrs. Wilkinson had told the Client that declaration of the bicycle was a fiduciary and regulatory requirement and that this was ‘non-negotiable’ (78/2). Later, however, they had discussed it together and decided that it need not be declared to the company.

 

135.   Re-examined, Mrs. Wilkinson related how the Client had come to Jersey to meet with a variety of service providers before deciding with which of them to place his business. It was during that visit that she had lunch on one day with him, and dinner the next (at Bohemia Restaurant and the Longueville Manor Hotel respectively). He had not at that point placed his business with the Company and therefore it was wrong to say that as a client he had given her hospitality. He had not yet become a client at that point.

 

136.   She had told Mrs. Jervier who the client was with whom she was forming a friendship. That was probably at the meeting of 18th December 2019. It will be recalled that Mrs. Jervier gave evidence to the contrary.

 

137.   Counsel took her through the Gifts and Benefits Policy, a document separate from the Conflicts of Interest Policy. Gifts above a value of £150 had to be raised with Compliance, she had done exactly that by going to Mrs. Jervier, who was head of compliance, she said.

 

138.   She was shown four gift declaration forms filed by different people and observed that while they had all been signed by compliance staff, not all of them had been signed off by an independent Director, as was a requirement. The performance was patchy in that way.

 

139.   She was taken to the Mark Andrews statement and denied having described the client to him as ‘more of an intermediary’. She said that she had named the client and the entity and mentioned the trips to London. There was another conversation with Mr. Andrews, in the work kitchen on 13th February where she mentioned the gift of a bicycle from the client. She was clear that Mark Andrews told her to make sure that the gift of a bicycle was declared.

 

140.   Equally on a business trip to Oman and elsewhere Mrs. Wilkinson mentioned the gift of a bicycle to Graham Fairlie. She describes how she showed him a picture of the bicycle and how, expressing himself in expletives, he was emphatic that the bicycle should be declared, even though a birthday gift. He went to the length of logging into the Gifts policy with her via the internet. She accepts Mr. Fairlie’s account that she spoke fondly of the client and clearly cared about him.

 

141.   Her evidence was that because the bicycle was a birthday gift, she was still not sure that it needed to be declared. She gave the analogy at the hearing of Mrs. Bracken-Smith’s husband, a client of the firm, buying Mrs Bracken-Smith an expensive ski-jacket which was not declared. She therefore turned to Mrs. Jervier once more. It seems fair to say that at this point she was swimming against the strong tide of the opinions already received. She relied on what the Head of Risk, Mrs. Jervier told her, she said.

 

142.   However, it is also the case that on her evidence Christine Jervier relied on what Mrs. Wilkinson told her – namely that Mrs. Bracken-Smith had decreed that personal gifts sent to the home need not be declared. Mrs. Wilkinson was referring back to the gift of wine from the client, as mentioned above.

Investigation, hearing, and appeal

143.   I do not propose to lengthen this judgment further by dating and describing each step of the investigatory process, of the disciplinary hearing and of the appeal. The relevant details are given in the witness statement of Mr. Ebbrell [1/8]and, additionally, material dates are included in the chronology prepared and included in the hearing file on behalf of the company.[1/2/17] Suffice it to say that I find the processes closely to have followed the practices recommended by JACS and to have been noticeably thorough. Minutes have been very well kept at every stage.

144.   Those who conducted the appeal, Messrs. Cookson and Robson were briefly cross-examined. Both had understood Mr. Ebbrell’s email of 7th January 2020 to Christine Jervier to suggest that the position could be accommodated by the company if a person in Mrs. Wilkinson’s position were to make proper disclosure; if that took place, arrangements such as a Chinese wall or other lockdown of the information on a need-to-know basis might be arranged.

 

145.   Taken to the conflicts form which had been filed, Mr.Robson pointed to the absence of a client name and the absence of information sufficient to enable the issuing of protective warnings within the company. I find as a fact that the conflicts form which was submitted by Mrs. Wilkinson was defective in all of the ways described by the company’s witnesses and that she should have declared a conflict at least when the client was taken on in August 2019 but deliberately did not do so; equally I find that the gift of the bicycle should have been declared under the Gifts and Benefits policy and that Mrs. Wilkinson did not disclose it.

Submissions of the Parties

Counsel for Mrs. Wilkinson:

146.   Turning to the facts, counsel said that had Mrs. Wilkinson been acting deliberately she could have remained silent about the friendship with the client, including the hospitality provided by him and the expensive bicycle. No one need ever have known. That would have been a case of gross misconduct, but here she had been completely open about the relevant things – she had told Christine Jervier, Mark Andrews, Graeme Fairlie, and her own team at the office.

 

147.   Meals taken with the client in June were at a time when he was exploring the option of placing his business with the firm. At that time he was not a client and in any event the sharing of those meals was widely known within the firm

 

148.   When the client’s business was taken on in August, she was aware of her responsibility in the matter and wanted to meet it by disclosing the relationship and its incidents at the same time as retaining a measure of privacy as regards the company generally – the very formula suggested by Mr. Ebbrell as head of HR, said counsel.

 

149.   The conflicts form was not as full as it might be, but it did register the conflict. It was signed off by Christine Jervier and counsel reminded me of the seniority of her position as Head of Risk and Compliance, managing a team of 7 reporting to her. Mrs. Jervier chairs risk and compliance meetings, and Mrs. Wilkinson is her deputy there. Mrs. Jervier not only signed the form but completed part of it herself, ticking the ‘personal relationship’ box. She approved the form and when asked by Matt Ebbrell if the matter had been dealt with, she said that all was well.

 

150.   Counsel enjoined me to remember throughout that Mrs. Jervier was the Global Head of Risk and Compliance and therefore a person of very great seniority within the company. I have taken that point. Yes, said counsel, the form might have been completed more fully, but discovering the client identity was no great challenge, given that P Holdings was named and that it only had two principals, one of them female.

 

151.   Moreover, Mrs. Wilkinson had tried to comply with the terms of her contract. The Conflicts of Interest Policy in the matter of gifts refers the reader onward to the Gifts and Business Benefits Policy. The relevant extract is set out above. What more could Mrs. Wilkinson do? The Policies told her to go to Compliance about gifts and she had done that very thing – actually going to the Head of Compliance about the gift of the bicycle and being advised by her that no declaration was necessary as it was a personal gift.

 

152.   The conflict declared by Mrs. Wilkinson on the form which she had filed had been before the Board at its February quarterly meeting as a line on the Register of Conflicts. The draft minute first circulated records that the conflicts register had been tabled and reviewed by the board but, after circulation for comment, had been corrected by Mrs. Bracken-Smith to add that the register would be further reviewed after the meeting. [1/28&29]

 

153.   Counsel asked me to notice the prominent part that Mrs. Wilkinson’s refusal to answer questions as to the practices of the friendship (Was it physical? Was it romantic?) had played in the view taken at the head of the firm. Mr. Rothwell had spoken of it in evidence as ‘an affair’; so too had Mrs. Bracken-Smith, adding unnecessary adjectival embellishment. There had been a jump to conclusions, and a hostility upon landing.

 

154.   He reminded me that Mrs. Bracken-Smith had been one of the dismissing officers and asked me to consider what may have been on her mind when she was involved in the decision making; equally she had concluded that Mrs. Wilkinson had acted dishonestly in the matter of the telephone charges, despite the company having received an explanation, despite Mrs. Wilkinson having paid the company the necessary sum, and despite the company concluding that no further action was needed. Again, counsel asked me to be alive to the possibility of unfair prejudice against Mrs. Wilkinson on the part of Mrs. Bracken-Smith.

 

155.   In similar vein, counsel observed that Mrs. Wilkinson had been criticized for not taking the matter to Mrs. Bracken-Smith as line manager for sign off. He suggested that having seen and heard Mrs. Bracken-Smith’s demeanour and attitude during the course of her evidence, it might be readily understood if Mrs. Wilkinson did not care to take this matter to that particular person.

Counsel for the Company

156.        Counsel took me to the contractual obligation which bound Mrs. Wilkinson (1/ 17 /clause 28). He reminded me that Mrs. Wilkinson had agreed that it was a critical provision. Counsel repeated the three separate heads of conflict which he had put to Mrs. Wilkinson and submitted that the form submitted by her did not enable the company to manage any of them. The fact that the ‘possible repercussions’ section had been left blank gave the misleading impression that there were none.

 

157.        At every omission and defect put to her, Mrs. Wilkinson had countered by saying that her standards were of the highest and the company could trust her integrity. Counsel pointed out quite simply that that is not how conflict management works.

 

158.        There had been so many opportunities to bring the matter openly to the surface with proper detail given to those who needed to know: the informal Director sandwich lunches were just one example.

 

159.        It was open to the employer to find that Mrs. Wilkinson had deliberately misled Ms. Jervier. It was clear from the Matt Ebbrell email of 7th January 2020 that neither he nor Ms. Jervier knew the true situation about which they thought they were corresponding. Yes, the company might have asked more and better questions, but that did not avail Mrs. Wilkinson in the least. She was deliberately ‘hiding in plain sight’ giving the minimum information she could get away with, to people on the periphery. The notion of personal gifts being exempt from the need for disclosure was absurd; corruption would have an open door.

 

160.        Ms. Jervier describes herself as having been manipulated and was not challenged.

 

161.        The question of an unfairly prejudicial attitude had not been put to Mrs. Bracken-Smith, or to Mr. Rothwell or to Matt Ebbrell who, with Mrs. Bracken-Smith, had been the other dismissing officer.

 

162.        On the question of gross misconduct it was the company’s position that Mrs. Wilkinson had acted wilfully and deliberately in breach of her contractual obligation. Her attempt to mislead Ms. Jervier and Mr. Andrews, for example, were calculated.

 

163.        She was part of the span of control and well knew the duties of a regulated director.

 

164.        Counsel referred me to JFSC guidelines [1/2/ annexe 3] and submitted that Mrs. Wilkinson’s ethical compass was directed to the client and not to the company, as it should have been. Support for this was to be found in the fact that she and the client – to the exclusion of the company - had decided that she need not declare the bicycle gift [2/58/3]. The company’s conclusions and the action taken accordingly were entirely reasonable in light of the facts, many of them undisputed.

The Law

Unfair Dismissal:

165.   The law in relation to unfair dismissal is well established.  Article 61 of the Employment (Jersey) Law 2003 (the “Law”) provides that an employee shall have the right not to be unfairly dismissed.

 

166.   Article 64 of the Law provides that the employer is required to show a fair reason for the dismissal and specifies a number of potentially fair reasons for dismissal, one of which is the employee’s conduct.   

 

167.   In order to show the reason for dismissal when it relates to conduct, an employer only needs to demonstrate to the Tribunal that it had a genuine belief in the employee’s misconduct. That belief does not have to be correct.

 

168.   Most recently the Tribunal summarised its powers in respect of determining whether or not a dismissal was unfair in the case of Tania Castanhiera v Empire Catering Limited [2020] TRE 049 at paragraph 6 of that judgment (I confine the extract to only that part which has proved relevant to my findings):

“when hearing a case of unfair dismissal, a Tribunal’s powers are limited, specifically that I am not permitted to substitute my judgment for that of the employer. Rather, it is for me to say whether both the decision to dismiss (Iceland Frozen Foods v Jones [1983] ICR 17 EAT) and the way in which the investigation was conducted (J Sainsbury Pic v Hitt [2003] ICR 111 CA) fell within the range of responses of the reasonable employer, in the circumstances in which the Respondent found itself. If the dismissal or the conduct of the investigation falls within the range, it is fair, if outside, then it is unfair.”

169.   Where the employee’s conduct is the reason for dismissal, the Tribunal is guided by the legal test established in the English case of British Home Stores Limited v Burchell [1980] 1CR 303.   The employer has to show that:

 

a)       he believed the employee was guilty of the conduct;

b)       he had in his mind reasonable grounds upon which to sustain that belief, and

c)       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.

 

170.   On the pleading submitted by Mrs. Wilkinson it had been claimed that the supposed misconduct was simply a blind to cover the true reason, namely cost-cutting by the company. That had been the suggestion of Mrs. Wilkinson but was unsupported by any evidence; indeed the company made it clear that she was an asset which they regretted having to lose. They truly did not want to be in this position. The cost-cutting suggestion was not pursued at the hearing and it was accepted by counsel for Mrs. Wilkinson that misconduct was the reason for the dismissal.

 

171.   I canvassed the following with counsel and understand them to share the view expressed: The Tribunal should not substitute its own factual findings about events giving rise to the dismissal for those of the dismissing officer; nor should it impose its view of the appropriate sanction in exchange for that of the employer. Accordingly, I warned myself against substituting my own view for that of the employer.

Finding on Unfair Dismissal

172.   I reminded myself of the reasons given by the company for the summary dismissal, as follows:

“Gross misconduct by failing to adhere to the Policies on Declarations of Interest/Avoidance of Conflicts of Interest Policy, and the Gifts and Business Benefits Policy, resulting from lack of transparency, openness, and honesty. These things led to a complete breakdown in trust and confidence.”

That distills into notification of dismissal for deliberate, calculated breach of the Policies mentioned.

173.   Turning then to the Burchell questions:

 

a)       The company found that the misconduct in the case had been deliberately designed to evade the conflict procedures. Having listened attentively to the witnesses of varying seniority called by the company, I easily conclude that the company had a genuine belief, on reasonable grounds, both that there had been misconduct and that it had been deliberate.

 

b)       On the question of there having been as much investigation as was reasonable in the circumstances of the case, I noted that no criticism had been levelled by Mrs. Wilkinson on this front and that in fact the investigation had been as thorough as may be. That was so even when judged against the principle that it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where on the facts of the case, the employee's reputation, or ability to work in his or her chosen field of employment is potentially prejudiced.

 

c)       On a question of the fairness of the disciplinary investigation and hearing I recalled that both Mr. Rothwell and Mrs. Bracken-Smith had been involved and both, during the course of their evidence, had referred to ‘an affair’ between Mrs. Wilkinson and the client. On the evidence this was no more than an assumption. Additionally, Mrs. Bracken-Smith had been one of the two dismissing officers and I had to consider whether the unconcealed animus which she displayed against Mrs. Wilkinson at the hearing might have infected the disciplinary hearing and the decision to dismiss.

 

d)       I revisited the record of those proceedings and was satisfied that Mrs. Wilkinson had been allowed properly to put her case throughout and was properly listened to by those questioning her. It appears that Mrs. Bracken-Smith’s present vituperation resulted from the conclusions to which she had been forced after the disciplinary process rather than from any pre-formed attitude before it.

 

e)       I concluded in particular that the company’s finding of deliberate misconduct was a finding which was, on the whole of the evidence, within the range of reasonable findings open to it.

Applying Burchell across the whole of the piece:

174.   I found that the employer reasonably believed that Mrs. Wilkinson was guilty of deliberate misconduct.

 

175.   I found that the company had reasonable grounds on which to base that belief.

 

176.   I found that the company had arrived at that decision after conducting a reasonable investigation.

 

177.   Following Iceland Frozen Food  -v- Jones [1983] ICR 17,  I reminded myself that the employer still had to demonstrate that the decision to dismiss Mrs. Wilkinson fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

 

178.   In considering whether the company has acquitted that burden, I have taken Mrs. Wilkinson‘s case at its highest. She spoke openly of her friendship with a client to Christine Jervier, Graeme Fairlie, Mark Andrews, and others. Although it was defective, she did eventually file a conflict of interest form with the company secretary in the knowledge that it would be placed before the board.

 

179.   It was she who had brought the gift of a bike to the attention of others; indeed, it was she who had raised the question of conflict in the first place in the conversation of 18 December with Christine Jervier. She was of good character and standing and nothing of the sort had ever appeared on her record before. Her record was that of a trustworthy professional. Put at the very highest, had she said nothing to anyone, these matters might never have come to light.

 

180.   In my judgment, those things do not go to the gravamen of the conduct in question. That gravamen is well expressed in the evidence of both Mrs. Bracken - Smith and Alastair Rothwell. The procedures are in place in regulated entities for a crucial purpose, namely to recognize and manage situations in which, with the best will in the world, the entity and therefore the Island, risk becoming vulnerable to money laundering, terrorist financing and corruption. Non-compliance is highly dangerous and a regulatory default. By not complying, Mrs. Wilkinson has brought questions down upon her own head.

 

181.   Even supposing there to be anything in what she says about forms not making a clear distinction between clients and clients who become personal friends, and who in the latter capacity provide hospitality and gifts, then her solution was abundantly clear and should have been so to her.  She had only to step into the office of Alistair Rothwell or some other director once the client had assumed that status, and to place the whole fact of the matter on the table for their adjudication.

 

182.   Instead, she initiated a coffee shop chat with a colleague, who was also a friend, in rushed circumstances approaching the Christmas break. She prevailed upon that unauthorized person to sign off the conflict of interest form, which was eventually submitted, incomplete though it was. She put to hazard the question of whether the board would examine the relevant small print line on the Register or not; in fact, it did not. Walking to or from a lunch at which wine circulated she mentioned to Mark Andrews that she had completed such a form and, on her evidence, asked him to field any questions about it in her absence. Mr. Andrews remembers the conversation but not the request just mentioned. On a trip abroad on business with Graeme Fairlie, tearfully, she told him of the gift of the bicycle. He told her to declare it; she did not do so. Instead she returned to Mrs. Jervier for another talk and did not declare the £1,200 bicycle.

 

183.   By not following the procedure – contractually necessary and easy of compliance – she caused the loss of that bright line which should have existed between her private life and her business responsibilities. She simply did not permit the Conflict of Interest form to fulfill the purpose for which it was designed.

 

184.   Naturally, it is permissible to discuss a position with a friend and colleague, particularly one who specializes in compliance and with whom one has worked in that very area. Naturally, it is permissible to mention matters to colleagues generally. What the company found to be impermissible  in the circumstance in which Mrs. Wilkinson found herself, was to circumvent these crucial contractual procedures by measures of her own choosing, particularly when they included such occasions as a coffee shop conversation and remarks to friendly colleagues, be they in a kitchen, on a St.Helier street, or in a  hotel lobby in Oman.

 

185.   Another employer might - just conceivably - have attempted to deal with this breach in some other way, but that is not the question. The question is whether what the company did in the circumstances with which it was presented was within the range of reasonable responses of a reasonable employer. Having considered the position of this company, the fact that Mrs. Wilkinson had alienated all of her senior colleagues, the company’s need to preserve a reputation for propriety, the fact that its business is regulated, the fact that it conducts its business in the heart of Jersey’s finance industry, and considering the risks which I have identified at which the company was placed, I have concluded that summary dismissal was comfortably within the range of  reasonable responses available to a reasonable employer in the circumstances in which the company found itself, and was therefore fair.

The Wrongful Dismissal Claim

186.   Counsel for Mrs. Wilkinson reminded me that gross misconduct is to be found only where there is a repudiatory breach of the contract of the employment – knowledge of the contractual obligation and a deliberate decision not to honour it. The cases, local and English on which he relied are set out in the Appendix to these reasons. He claimed that the conduct of Mrs. Wilkinson in this case was not of the kind which could properly be characterised as gross misconduct. There was no calculated deception, no deliberate decision to act against a contractual obligation. It is not gross misconduct simply to get something wrong.

 

187.   Both counsel referred me to the seminal cases of Wilson v Racher [1974]ICR 428,CA; Pepper v Webb [1969] 1 WLR 514; and Laws v London Chronicle [1959] 1 WLR 698. There is a clear distinction between the Tribunal’s fact-finding role in unfair dismissal claims on one hand and wrongful dismissal claims on the other. In the latter case, fact finding is for the Tribunal, on the balance of probability. I have concluded that the contractual breach was, as the company has submitted, calculated and deliberate for the reasons advanced by the company. I have had particular regard to Mrs. Wilkinson’s long experience and the high level of her compliance expertise.

 

188.   Not every breach of a contractual term will amount to gross misconduct, and not every instance of gross misconduct will inevitably warrant summary dismissal. I have therefore gone on to consider the effects of the conduct in this case. It has implicated others, it has put the company to considerable expense, it has left the company vulnerable to a finding of fault by the regulator, it has left the company vulnerable to loss of reputation, it was careless of the vulnerability of the company and the Island to money laundering, terrorist financing, and corruption.

 

189.   In those circumstances, I find that Mrs. Wilkinson was guilty of gross misconduct and that the company was entitled to dismiss her without notice.

Trust and Confidence

190.   There was mention throughout of the company having lost trust and confidence in Mrs. Wilkinson. I note that breach of the implied contractual term to that effect was not pleaded, presumably because the breach of the express term was patent. I have not needed to consider the question of breach of an implied term but I have nevertheless found consistent evidence of the loss of trust and confidence helpful in fortifying the conclusion that lesser sanctions were not reasonably available in this case.

 

191.   I should say that I have taken account throughout of Mrs. Wilkinson’s previous record of unexceptionable service and the good things which others have said about her character. The finding in this case is one that gives no pleasure.

 

192.   The appendix which follows forms an integral part of this judgment.

 

 

 

 

APPENDIX

 

1.       The hearing took place over 4 days (January 18-21 2021).

 

2.       The Hearing Bundle comprised 3 lever arch files containing, with documents produced in the course of the hearing, something roughly to the order of 1,000 pages.

 

3.       I heard evidence from 9 witnesses, including Mrs. Wilkinson as Claimant.

 

4.       While hearing the witnesses I took the opportunity to assess the demeanor and levels of clarity with which they answered the various questions put to them.

 

5.       When making my judgment I considered all the written evidence provided by each of the parties as well as the oral evidence provided by them and their witnesses.

 

6.       My findings of fact based on the evidence provided are set out in the body of this judgment. In this judgment only the facts that are relevant to the issues to be determined have been summarised. Where there have been factual disputes which fall to me to resolve I have done so on the balance of probabilities based on my assessment of the credibility of the Claimant and the consistency of the witnesses’ accounts with the rest of the evidence.

 

7.       A Case Management Meeting took place on 23rd September 2020. I take the following verbatim from the Deputy Chairman’s order of that day. It is limited to the extracts which remain relevant to these reasons:

“Reason for dismissal

What was the reason for the dismissal? The respondent asserts that it was a reason related to conduct, which is a potentially fair reason for dismissal.

Although not required to do so, the Claimant states they do not accept this is the real reason for the dismissal which they say was because of wishes to cut costs.

When deciding on the reason for the dismissal the tribunal will decide, on the balance of probabilities and based on the evidence, what was at the forefront of the Respondent’s mind when dismissing the Claimant.

Dismissal within range of reasonable responses

Was the decision to dismiss a fair decision, that is, was it within the reasonable range of responses open to a reasonable employer when faced with these facts?

Breach of Contract - Wrongful Dismissal

It is not in dispute that the respondent dismissed the Claimant without notice.

Does the Respondent prove that it was entitled to dismiss the claimant without notice and without a payment in lieu of notice because the claimant had committed gross misconduct?”

8.       It was accepted at that meeting that the Claimant passed the threshold tests necessary to bring a claim for unfair dismissal, namely she was an employee; she was dismissed; and she had sufficient continuous employment at the time of the dismissal to present a claim of unfair dismissal.

 

9.       The following authorities were placed before me by counsel and I considered all of them:

Jersey Authorities:

Speak v Sutherland [2012 135/2011]

Upton v SEB [2014 134/2012]

Bonney v Rabeys [2014 10/2013]

English Authorities:

Laws v London Chronicle [1959] 1 WLR 698.

Wilson v Racher [1974]ICR 428,CA

Pepper v Webb [1969] 1 WLR 514

BHS v Burchell [1978] ICR 303

Neary v Dean of Westminster [1999] IRLR 288

Mbubaegbu v Homerton University Hospital [2018] UKEAT/0218/17/JOJ

Legislation

Art 61 Employment (Jersey) Law 2003

 

10.    Suitably in advance of the hearing dates I contacted counsel through the Registrar of the Tribunal and mentioned that I knew Mr. Ebbrell slightly because he worked at JFSC during my tenure as a Commissioner there. Counsel confirmed that they were content for me to sit.

 

11.    I canvassed with counsel how the question of the Mexico telephone charges should be treated. Both counsel were content for them to be regarded as a neutral matter, relevant only to the narrative of how Mrs. Wilkinson’s breaches of the employment requirements at the centre of this case came to light. I treated them in that way accordingly.

 

12.    I have set out the evidence at considerably greater length than is most often the case in Tribunal judgments. I believe that to be appropriate in cases where, on the facts, the employee's reputation, or ability to work in his or her chosen field of employment is potentially prejudiced.

 

13.    This case was prepared by mature counsel working collegiately. Of their own initiative they agreed in advance the running times and witness order and other practical matters. The extensive hearing files were jointly prepared and immaculately presented, and counsel treated each other, their opposing cases, the witnesses, and the Tribunal with great respect. That was of particular value in a difficult case in which feelings ran high. The approach of counsel in this case might well be taken as an appropriate model.

 

 

 

Advocate C.E. Whelan, Deputy Chairman                                                                      Date: 27.01.2020