IN THE JERSEY EMPLOYMENT
AND DISCRIMINATION TRIBUNAL
BETWEEN
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|
GERALD
WILLIAMS
|
CLAIMANT
|
|
|
AND
|
|
|
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HSBC BANK
PLC
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RESPONDENT
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TRIBUNAL JUDGMENT
Reference: [2023]TRE 90A
Date of hearing: 9
– 10 January 2025 and 24 February 2025
Before: Advocate C E Whelan,
Deputy Chair
Appearance:
For the Claimant: In person
For the Respondent: Advocate H Thomas
JUDGMENT
The claims for
unfair dismissal and unpaid wages brought by the claimant (‘Mr Williams’)
against the respondent (‘the bank’) are dismissed.
REASONS
Synopsis
1.
Mr
Williams worked for the bank for some five years. He left, and brought these
claims for constructive dismissal and unpaid wages.
2.
He
says that the bank wronged him in two ways that forced him to leave his job.
3.
Firstly,
he says, the bank recruited him into a post by misdescribing its functions; and
secondly, having done that, the bank did not give him enough support in the
post anyway.
Sequence
of events
4.
Mr
Williams began working for the bank on 3 April 2018, becoming a well-regarded
member of its call centre.
5.
He
intended to advance his career with the bank and in 2021 he successfully
applied to become a junior relationship manager (“JRM”) moving into that post
in September 2021. His line manager became Veronica de Gouveia (‘Ms de
Gouveia’), and above her in the relevant management hierarchy was Katherine
Farmer (‘Ms Farmer”). I heard that the
acronym of the job title was interchangeable, internally, with other acronyms
for the same post. Like Ms de Gouveia, for ease of reference I have used JRM to
refer to the post which Mr Williams occupied at relevant times.
6.
The
functions of the JRM are set out in the job description as follows:
·
build
relationships with clients to retain and develop sustainable relationships
·
complete
regular reviews with clients to understand their current and long-term needs
and advise them on the products and services that help them achieve their goals
·
work
collaboratively as part of the wider wealth management team
·
undertake
training and development to support your personal growth within HSBC
·
fully
utilise and input to client relationship management data ensuring all client
information is complete and kept up to date
·
develop
and maintain an understanding and technical knowledge of relevant products and
services available from capital HSBC Group sources in order to provide the best
solutions for clients.
7.
The
new employment did not go well either for Mr Williams or for the bank.
8.
On
4 July 2022 Mr Williams went on long-term sick leave and was destined not to
return to his employment with the bank.
9.
On
19 August 2022, while still absent from work, Mr Williams raised a grievance
under the bank’s procedure in that regard. Further to that policy the grievance
was investigated and the minute of the investigation interview which took place
on 3 November 2022, shows it to sub-divide as follows:
·
significant
changes to Mr Williams’ responsibilities which exceeded his anticipated
expectations;
·
these
tasks have shifted the focus from his contractual duties;
·
he
was allocated with unachievable assignments/tasks;
·
he
was the only one left to do the Welcome Calls;
·
his
weekly targets for the JRM role were unreasonable as it was double compared to
the other JRMs;
·
putting
him on a PIP (Personal Improvement Plan) was not fair as he was continuing to
do his best to achieve and perform
10.
The
investigation carried out by John Moore (“Mr Moore”) the Employee Relations
manager of the bank did not uphold Mr Williams’ grievances and Mr Williams
appealed as was his right under the procedure. I heard evidence from Mr Moore.
He had found areas for improvement in managerial procedures during his
investigation, but none that prejudiced Mr Williams and none which could lead
to upholding the grievances raised.
11.
I
noted that Mr Williams’ narrative (being appointed on the job description but
once in post being told that the job was confined to welcome calls) had not
been put to Mr Moore at the time of his investigation, and he had found no
evidence that such had been the case. His report was in evidence and made
reference to no such event.
12.
The
appeal was heard by Kay Roscoe who conducted meetings, including a meeting with
Mr Williams, and considered additional information provided by Mr Williams. The
appeal hearing took place on 16 March 2023. The appeal was unsuccessful and as
part of the outcome, options already offered to Mr Williams following the
outcome of the grievance hearing were repeated. They were as follows: either to
move to another department to continue in his role but with a different line
manager; to take another role at a lower level but on the same pay; or to
remain in the same role.
13.
Mr
Williams did not take up any one of these options and instead resigned on 21
April 2023.
14.
At
the tribunal hearing, his evidence was that he had suffered such a bad time
with the bank in its place of business that he could not face returning there.
15.
The
bank subsequently asked him if he wanted to reconsider his resignation. That
took place on 24 April 2023, but no response was received to the letter which
was sent.
16.
The
complaints before the tribunal, so far as concerns the content of the work
given to Mr Williams and the expectations placed on him, included the same
matters upon which Mr Williams had raised his internal grievance.
Welcome
calls
17.
This
is the place in which to mention welcome calls.
I heard unchallenged evidence that a welcome call is a call to a new
bank customer to welcome them to the bank and ensure that they have received
their necessary details and also to discuss the products and services available
to them. One of the aims of such a call is to understand how much the customer
would hold with the bank long-term and the reason for opening the account. This
was to be followed up by booking an appointment with a relationship manager who
would introduce themself and conduct a more in-depth conversation about the
products and services available. This is part of an “onboarding” process which
the bank also regarded as an important feature of its customer service.
18.
All
JRMs conduct welcome calls both upon entering the role and in their continuing
duties within the role.
19.
I
have drawn attention to welcome calls in this way because central to Mr
Williams’ claims is his assertion that he was never allowed to progress in the
JRM post beyond this essentially limited task. In particular, JRM team members
are given responsibility for a particular geographical area – Asia, the
Americas etc – and for developing client relationships within the given area.
Mr Williams was not given a region and not permitted to develop in this way.
That evidence is unchallenged.
The
rival narratives: Mr Williams
20.
Mr
Williams says that he was interviewed in accordance with the job description
set out earlier in this decision but that when he attended for work in the new
post of JRM, Ms de Gouveia told him that the job consisted only of
making welcome calls and nothing else. Because he is a family man needing work
Mr Williams, although disappointed, elected to stay in the post, and did so
until things became intolerable for him. He gave evidence that although
newcomers to the JRM team were immediately
assigned to deal with clients in a specific geographical region as
described above, he was not assigned in that way. He was not a member of a team
but instead was left isolated.
21.
The
targets given to him for making welcome calls were unreasonable in the first
place, but more than that he was not allowed to establish continuity because he
was randomly assigned to other tasks for the bank. To use a common term, he was
programmed to fail. Such was his case.
22.
Ms
de Gouveia even told him at a one to one meeting in the June following his
appointment that if he wanted a JRM post, he would need to wait for a vacancy
and re-apply.
23.
Characteristic
of the bank’s lack of support for him, he says was a particular incident
involving another member of staff. That member of staff had aggressively
berated him in the full view of others in the open-plan workplace. He and a
colleague had complained about this and although a management investigation had
taken place it was insufficient and led to no satisfactory outcome.
24.
He
had eventually lost confidence in the bank and in particular in the HR section
because of the matters already outlined:
he could no longer have trust and confidence in the bank meaning that it had
breached the implied term of the contract of employment in that regard, a
fundamental breach showing that the bank no longer intended to be bound by the
contract, so that the only recourse left to Mr Williams was to resign.
The
rival narratives: the bank
25.
The
bank’s position was that the whole of Mr Williams’ account was incorrect. All
newcomers to the JRM team were eased into the position by making welcome calls
and were monitored/supervised while doing so. Once it was established that they
were competent to make such calls and could do so in a way that enabled them to
reach a target number of calls, then, but only then, were they entrusted with
the wider functions of the JRM described in the job description. Mr Williams
had never reached the necessary standard and fell short of the targets, even
the reduced targets, reasonably set for him. Given the regulatory and business
imperatives which applied, Mr Williams could not safely have been entrusted
with the wider range of duties.
26.
Mr
Williams had been given abundant support but had not been able to take
advantage of it.
At
the hearing – incidentals
27.
Mr
Williams raised concerns about a possible conflict, given that a junior member
of the bank’s legal team was the daughter of one of Mr Williams’ friends and he
had known her from childhood in that family context. It was established to my
satisfaction that the junior member in question was a paralegal whose job on the
team had been limited exclusively to routine administrative things. On
the usual Porter v McGill test I
could identify nothing to trouble the properly informed neutral observer and
the junior member remained present throughout the hearing.
28.
The
bank had raised a counterclaim in respect of an overpayment of sick pay, but I
was told that the debt has been acknowledged and that nothing further was
required from the tribunal in that regard.
29.
Mr
Williams had been given leave for each of his three witnesses to give evidence
in person. Only two of those witnesses were available on the day and I
adjourned the matter so that his third witness could be heard. The third witness was Ms Kyah Gibaut.
She gave evidence and was cross-examined at the reconvened hearing of 24
February 2025.
30.
Those
who gave sworn evidence in the original hearing were: Mr Williams and his witnesses Mr Terry Le
Normand and Mr Bogdan Voinea; and for the bank, Ms de Gouveia, Mr Moore and Ms
Farmer.
At
the hearing:
Mr
Williams
31.
Mr
Williams gave evidence in accordance with the narrative attributed to him
above. At one point he produced his telephone which he said contained a
recording which would prove that he was told that the job consisted only of
making welcome calls, despite the extent of the job description on which he had
been appointed.
There
had been no notice of such evidence but
I allowed the recording to be played to see where it led. It led only to
support for the bank’s narrative and provided no support for that of Mr
Williams.
32.
To
the extent that witnesses, including Mr Moore for the bank, had suggested that
Ms de Gouveia’s management style may
have been severe and lacked empathy, on that recording it has to be said that
she is heard to speak kindly and with patience in accurately describing the
position about the welcome calls.
33.
Mr
Williams suggested that recordings of his initial job interviews and one to one
interviews while in post existed but, suspiciously, had not been produced by
the bank although he had asked for them. The existence of the job interview
recording was not established but was irrelevant to the extent that Mr Williams
said it would show that he had not been warned that the job was confined to
welcome calls, a matter not denied by the bank and indeed one which formed part
of its own narrative that no such thing had ever been said. Moreover, the one
to one interviews were very fully documented and I found that the question of
tapes led nowhere.
34.
It
was exceedingly difficult to bring Mr Williams to answer specific questions;
his stock response was simply to repeat the whole narrative on which he relied
as described above, whatever the question. In those circumstances, it was
difficult for counsel or the tribunal to establish forward moving dialogue with
him.
Ms
de Gouveia
35.
Ms
de Gouveia gave evidence that like all newcomers to the team Mr Williams was
initially set relaxed targets for customer conversations, namely targets at 50%
of the usual expectation, and after the settling in period was set targets at
the full 100% of the usual expectation. Again, this was normal practice applied
to all newcomers to the team.
36.
Mr
Williams started with the team on 6 September 2021. Ms de Gouveia’s evidence
was that by October that year it was apparent that Mr Williams was not meeting
the expectations set for JRMs. Her reaction was to reduce his workload to
ensure that he could focus on customer conversations. This meant that the level
of administration which he was required to perform was less than that of his
peers, so that his opportunity to make welcome calls was correspondingly
greater than that of his peers.
37.
Throughout
this time, Ms de Gouveia had weekly and monthly meetings with Mr Williams in
the attempt to support his performance. The help given to Mr Williams even
included customer call role-playing and coaching sessions. I was shown all of
the documentation associated with those things. These were additional to his
general training and he also had the opportunity to shadow his peer JRMs on
calls.
38.
Nevertheless,
Mr Williams’ performance did not improve and Ms de Gouveia repeatedly had to
ask him for the same information and to keep following up with him regarding
customers that had not been contacted by him when they should have been so
contacted.
39.
As
part of her normal liaison with her own manager, Ms Farmer, Ms de Gouveia
explained that Mr Williams was not performing to the expected level and a
discussion took place between them about the further support that he could be
offered. Ms Farmer went so far as to observe some of Ms de Gouveia’s individual
meetings with Mr Williams and some of the call coaching sessions which Ms de
Gouveia conducted with him.
40.
Because
Mr Williams’ performance had not improved by the end of that year, 2021, after
consultation with Ms Farmer, Ms de Gouveia placed Mr Williams on a focused
learning plan (“FLP”). I heard evidence that this is an informal performance
management tool that sets the individual clear actions and structure in meeting
performance expectations, along with weekly catch up meetings to check progress
and discuss any challenges. I heard further that extra support from Ms de
Gouveia as line manager was also provided in the form of weekly
side-by-side/call coaching. I was shown a copy of the FLP and received evidence
from Ms de Gouveia that the use of such a measure is a usual first attempt at
dealing with performance difficulties. I was given evidence, in that regard,
that the same measure had been used with another team member earlier that same
year. In that case, the management measure had upgraded to a formal Performance
Improvement Plan (“PIP”).
41.
In
the case of Mr Williams the FLP did not achieve the necessary result; his
activity statistics were still below expectations and, the bank had also
received two customer dissatisfaction notifications because no contact had been
made following the customers’ requests for contact. Ms de Gouveia gave evidence
of having made consistent and varied attempts to support Mr Williams including
sitting side by side with him and giving him practical coaching.
42.
The
new year of 2022 provided the opportunity for a reset and Mr Williams was
permitted to start with a blank record. However, he continued to underperform
so that by February 2022 a second FLP had to be put in place and lasted until
the following month. Again, I heard evidence that this support continued and
that it was of the consistent and intensive sort which I have already
described. The bank relieved Mr Williams of other duties, such as
administration, in the attempt to enhance his opportunities to achieve the
necessary improvements.
43.
By
March 2022 Mr Williams had still not achieved the necessary targets so that in
accordance with the bank’s standard policy, the next stage was activated, that
is to say that a formal PIP was put in place on 18 April 2022 and was due to
run to 25 July 2022. The intensive support already described continued to take
place. Mr Williams still failed to meet the necessary targets despite being
permitted to focus simply on the welcome calls themselves without having to
deal with the output from the calls.
44.
In
around May 2022, some eight or so months after his appointment as a JRM, Mr
Williams was asked to switch tasks and support the contact centre for four
weeks because of a staff shortage there. The same was asked of other
individuals in other teams and Mr Williams was particularly well placed to
help, given his previous contact centre knowledge and experience.
45.
He
returned to his normal role the following month, June 2022, and was allocated
to a discrete project which was taking place, namely calling customers with
high balances. He joined 4 other team members in completing that project , and
I heard evidence that this gave him the opportunity to call customers and to
book in appointments that would support his general role performance figures. I
note that the PIP was placed in abeyance during his contribution, with other
team members, to that discrete project.
46.
The PIP was due to finish on 25 July 2022 but Mr
Williams left on long-term sickness absence on 4 July 2022. I note that he
raised his grievance, and the departure from the job description only four
months after the PIP had been put in place, and almost a year after his
appointment as a JRM.
47.
Ms
de Gouveia was clear in her evidence that Mr Williams would have been given the
opportunity to move onto other tasks apart from welcome calls had those
supervising him been satisfied that he was able to complete the calls and meet
the targets set out in his PIP. Unfortunately, he had not been able to do so
and those supervising him considered that his poor performance indicated that
he was simply not ready to perform the more demanding functions of the role.
There was nothing demeaning about doing welcome calls in themselves – it is
part of the JRM role. It is simply the case that Mr Williams was unable to
demonstrate proper capability in performing that particular task so as to raise
serious doubt about his ability to move onto the wider and more demanding
functions within the JRM role.
48.
Ms
de Gouveia gave further evidence that she assisted with an occupational health
referral in respect of Mr Williams and, as a shared practice with Ms Farmer,
would try to maintain contact with Mr Williams on a weekly basis by telephone
or, if there was no reply, by email. His responses were patchy.
49.
She
speaks of the internal grievance in these terms: ‘When I was made aware of
the grievance, I was very surprised as Gerald [Mr Williams] had not raised or
escalated any concerns to me. I often found that Gerald wouldn’t talk very much
in his 1:1s and call coaching sessions; he would often make no eye contact with
me and would sit with his head down. This made it very difficult for me to help
and manage Gerald.’
50.
She
gave evidence that nobody of Mr Williams’ inexperience had ever been assigned
to a region immediately on joining the team. Moreover, he was part of the
general team for which she was responsible and contact, advice, inclusion were
all there for the asking.
Ms
Farmer
51.
Ms
de Gouveia’s evidence is completely supported by that of Ms Farmer, her
supervising manager, in each material particular. Notably, she confirms that
she regularly reviewed the performance of each member of the team to enable her
to support the managers who reported to her. She recalled regular conversations
with Ms de Gouveia about the performance of Mr Williams. Ms de Gouveia would
always raise concerns about performance management involving her team and Ms
Farmer and Ms de Gouveia would work on a solution together. This applied to the
work of other members of the team, and not just that of Mr Williams. This also
included coaching observations on Ms de Gouveia’s conduct of one to one
meetings with team members, and providing coaching feedback – ‘coaching the
coach’.
52.
As
mentioned, Mr Williams makes reference to a particular incident in which he
says that he was ‘harassed/ bullied’ by another member of staff. Mr Williams
put forward a statement from Bogdan Voinea, a former co-worker, and Mr Voinea
gave evidence which conformed with his statement to the effect that on the
occasion in question he saw a colleague approach Mr Williams and a conversation
took place. Mr Voinea says that he was unaware as to the exact words that were
used, but hostility, including a raised voice and finger pointing, were
apparent and he did hear the colleague say ‘is this your first day at work‘ in
a sarcastic manner, and ask who Mr Williams’ manager was.
53.
It
is part of Mr Williams’ claims that this incident was not properly dealt with
by Ms Farmer, in particular because Mr Voinea was unavailable at the time of
the investigation, and it should not have been concluded until he had been
spoken to. Further the explanation given by the other member of staff was implausible
and should not have been accepted.
54.
Ms
Farmer’s evidence on the point is that she was aware of the conversation of
which the complaint was made shortly after it occurred. Mr Williams was unable
to explain what had happened or what he wanted to happen as a result.
55.
On
the same day, Miss Farmer spoke to the other person,. who explained that she
had told Mr Williams that one of the customers he had spoken to had
successfully completed the mortgage with the bank and she told Mr Williams to
make the necessary entries onto the system to ensure that he was recognised for
this. That other person explained to Ms Farmer that she had found Mr Williams
’unusual as he had his hands on his head and was rocking backwards and
forwards.’ The other person sent Ms Farmer all the email correspondence that
she had had with Mr Williams about the customer, and there are examples to show
that the customer was chasing Mr Williams for updates as he had not responded
to them. Ms Farmer next relayed this account to Mr Williams who had found the
other person’s approach to be overly direct and sharp of tongue. Mr Williams
did not ask for any further action to be taken.
56.
Ms
Farmer went on to speak to the line manager of the other person concerned to
make them aware of the situation in case there was anything else that the bank
needed to do. They agreed that as the process had been clarified with Mr
Williams and he had not requested further action there was nothing more to be
done on the point.
57.
Additionally,
Ms Farmer spoke to another team member, namely Ms Nicole Afonso who had also
been present when the conversation in question took place but nothing further
transpired and that there was no request for further action, Ms Farmer regarded
the matter as closed. Mr Williams had not raised it further with her in the
days or weeks afterwards. In particular he never at any point asked her to
speak with Mr Voinea.
58.
Mr
Williams accused Ms Farmer of lying that she had spoken to the witness Mr
Voinea when in fact she had not. She denied that and Mr Williams produced no
evidence in support of his allegation. I found it to be baseless; I found Ms
Farmer to be a patently honest witness throughout.
59.
I
noted that after the initial complaint, Mr Williams raised this incident for
the first time only with Mr Moore; it had not formed part of the grievance
which he filed. The incident took place in February, but Mr Williams did not
raise it as a grievance until seven months later, in August.
60.
Ms
Farmer also gave evidence that Mr Williams asked to meet with her and that
meeting between them did take place on 22 March 2022. The meeting lasted for
some 90 minutes and although Mr Williams expressed concern over a meeting he
had had with Ms de Gouveia, Ms Farmer found it hard to follow what he was
asking for and he was not clear about it himself. She persisted and eventually
Mr Williams asked her to listen to a call between him and Ms de Gouveia.
61.
Ms
Farmer complied with that request and having listened to the call had a further
meeting with Mr Williams to give her observations. She said that she found no
conduct issues on the call from either party; she felt that Ms de Gouveia had
shown empathy towards Mr Williams’ personal situation outside work; she notes
in particular that Ms de Gouveia was asking questions that Mr Williams did not
answer and chose to remain silent at points. Ms de Gouveia was heard to give
factual examples of where she had requested things from Mr Williams which he
had not done or had ignored completely.
62.
Ms
Farmer’s evidence was that as she spoke to Mr Williams about these things he
was withdrawn and sat with his head down, rocking backwards and forwards. She
asked him repeatedly what he wanted her to do to help and support him, but he
did not answer. At one point, he laughed at the feedback. Ms Farmer said at
that point that she did not feel that the meeting was constructive so that it
was best to end it, and for Mr Williams to book in a further meeting when he
had reflected. He never did so.
Mr
Le Normand
63.
Apart
from his own evidence, Mr Williams put forward evidence from three co-workers,
namely Bogdan Voinea, Kyah Gibaut and Terry Le Normand.
64.
Mr
Le Normand was sympathetic towards Mr Williams’ position and critical of
management. In particular he found a fault with the management style of Ms de
Gouveia and spoke of problems having arisen about it in the past. She had
placed him on a PIP in the past despite what he described as his outstanding
track record. There had been a time when half of her team had been subject to
that measure. He described Ms Farmer as indifferent to Mr Williams’ position
and showing no concern about it.
65.
He
impressed upon me that until his move to the JRM team, Mr Williams had been
energetic and committed to high performance. (Mr Williams himself gave evidence
of occasions in the past where he had gone out of his way to support the bank.)
I had no reason to doubt that latter aspect of the evidence.
Mr
Voinea
66.
Mr
Voinea’s evidence has already been described. I found him to be an impressive
witness who said that he had no compunction about speaking freely as the bank
had ‘a great policy’ encouraging people to do exactly that.
67.
I
took note of his description of Mr Williams as a person with positive, good
values who always tried to do the right thing.
Ms
Gibaut
68.
Ms
Gibaut gave evidence that she was concerned at seeing Mr Williams isolated at
work. She thought his treatment by the bank to be unfair. She was aware of no
other example of a supposedly underperforming member of staff being denied the
opportunity to perform the wider aspects of the JRM role. Even one ‘M’, thought of by the bank as
a poor performer had been given that opportunity before being limited again to
welcome calls. She was not aware that Mr Williams had been placed on
performance management regimes.
69.
Whenever
I have encountered points of difference between the evidence put forward by or
on behalf of Mr Williams and that put forward by the bank I have preferred the
evidence of the bank. The evidence given on behalf of Mr Williams comes from
individuals who had no responsibility for his performance, had no access to his
performance records or his other records, or those of others with whom they
sought to draw comparisons unfavourable to the bank, and were not placed to
have the managerial and strategic overview of this part of the bank’s business
as affected by Mr Williams.
Findings
of fact
70.
I
have therefore made findings of fact as follows:
·
that
Mr Williams performance in the role of JRM was not to the standard reasonably
required by the bank;
·
nor
was it to the standard met by Mr Williams’ peers in that role;
·
that
the bank’s response was unexceptionable and conformed with fair business
practice in applying a focused learning plan on successive occasions and
thereafter putting a performance improvement plan in place;
·
that
the bank took positive steps at every stage to support Mr Williams and to keep
him in its employ.
71.
The
latter finding is evidenced by the apparently accommodating options offered to
Mr Williams at the conclusion of the grievance outcome meeting which have
already been described. It is further evidenced by the bank asking him if he
wanted to reconsider his resignation, again as described earlier.
The
Law : Constructive Unfair Dismissal
72.
I
have directed myself in accordance with all of the usual principles attaching
to this area of law, but they can be shortly expressed as was helpfully
done in Le Boustouler v Jersey Deep
Freeze Ltd [2023] TRE 93, thus:
The
test for constructive unfair dismissal is set out in the case of Dunham v Lightening
Hotels Limited [2021] TRE 55. [The claimant] must establish that there
was a fundamental breach of contract that he resigned in response to and there
was no waiver or affirmation of the contract. For the breach to be fundamental
the employer’s conduct must amount to a significant breach going to the heart
of the contract or show that the employer no longer intends to be bound by one
or more of the essential terms of the contract. The conduct of the employer
must be looked at objectively in all the circumstances and from the perspective
of a reasonable person in the position of the innocent party.
73.
In
this context I have naturally kept in mind not only the terms of the written
contract but also the implied term of trust and confidence inherent in the
contractual relationship.
74.
I
have set out the facts at some length and I have closely examined everything
put before me. Despite close scrutiny I have been unable to find any breach of
contract of the sort necessary to establish a case of constructive dismissal.
Indeed, on the facts as I have found them to be, I regard the bank as having
conformed throughout to highly professional standards and to have taken great
pains with Mr Williams in the attempt to bring him on in the job and to foster
his development with a view to him eventually growing into the whole dimension
of the JRM post. I do not find the bank responsible for the loss of that
direction and the departure of Mr Williams.
75.
Although
they have all informed the decision which I have reached, I do not intend to
rehearse the facts already set out, but my view of the specifics raised by Mr
Williams are as follows.
76.
In
so far as Mr Williams claims that his job changed numerous times after he took
the JRM post, I am satisfied that it was
reasonable for the bank to have assigned him to the discrete projects which I
have described; they were suited to his attainments and the contract made
express provision for such moves.
77.
In
so far as Mr Williams claims that he was held back while later joiners / people
with less experience than him were given a wider range of duties and
responsibilities, I accept the evidence of his supervisors that he was not
ready to assume the responsibilities in question. The bank was entitled to have
an eye to its business needs, and I have been at pains to describe the
intensive support which it made available to Mr Williams, and with which it
persisted. I notice in particular that supposing he had, as he describes, been
told on his arrival into the new job that it was entirely confined to making
welcome calls, then even on his own case he affirmed the supposed breach by
electing to remain in the post for so long afterwards, one of a number of
strong points put forward by counsel for the bank in his helpful presentation
of the bank’s case.
78.
In
so far as Mr Williams claims that he was insulted by another staff member and
that no sufficient action was taken, I have dealt with the matter at length and
accept the evidence of Ms Farmer that she took pains to investigate the matter
and to establish whether Mr Williams wanted to take the matter further. Had Mr
Williams lost confidence in the bank’s HR section at that point, then it is
inexplicable that he should have waited some 7 months before ever raising it
again. There is no evidence that he complained of the outcome to Ms Farmer or
that he indicated a wish for the matter to be taken further.
79.
In
so far as Mr Williams claims that he complained to Ms de Gouveia that he felt
demoralised but that she / the bank did nothing about it, I simply refer again
to the evidence of both Ms Farmer and Ms de Gouveia about the attention
consistently given to Mr Williams’ position and their attempts to help him. I
have seen the records and accept the evidence.
80.
In
so far as Mr Williams claims that he was given unreasonable weekly targets,
double that of other JRMs, I find that he is not comparing like with like. He
was relieved of all administrative duties at material times so that he could
concentrate solely on the welcome calls; meanwhile the other JRMs were
performing the whole of the task range relevant to that post.
81.
I
turn again to a matter of definition and repeat that for a breach to be
fundamental the employer’s conduct must amount to a significant breach going to
the heart of the contract or show that the employer no longer intends to be
bound by one or more of the essential terms of the contract.
82.
In
the present case, the bank in addition to the support already provided to him,
gave Mr Williams the options to move to
another department; to continue in his role but with a different line manager;
to take another role at a lower level but on the same pay; or to remain in the
same role. Suffice to say that I have found neither a breach of the sort
described nor evidence that the bank no longer intended to be bound in the way
described. That remains so even when the case is considered on the ‘last straw’
basis.
83.
It
was plain to see that Mr Williams felt that he had lost his reputation and
sense of self-worth as a result of this episode in his working life. It is equally clear that he had many
strengths to offer an employer in the banking sphere. His witnesses spoke
warmly of him. He was very good at a number of things, but sadly not at the
things required by this particular post.
84.
I
find no basis on which I could uphold this claim of constructive unfair
dismissal, and it is dismissed. The claim for unpaid wages, viewed separately
on the common law breach of contract basis, falls away with it.
.
Advocate
C E Whelan, Deputy Chairman Dated: 6 March 2025