Employment tribunal and court judgments | October 2023

Banker dismissed for expensing meals for him and his partner was fairly dismissed

Mr Sazbolcs Fekete v Citibank N.A.

Background

Mr Fekete had worked for Citibank for seven years as a Senior Analyst working in financial crime. He described his role as involving developing "internal strategies, policies and risk management frameworks to ensure compliance with laws and regulations".

As you would expect, Citibank had clear policies setting out a code of conduct (requiring honesty in dealings and truthfulness in investigations) and expense rules (including that spousal travel and meals were not reimbursable and that you must list those who attended a meal which you have submitted for reimbursement).

In early July 2022, Mr Fekete went on a business trip to Amsterdam. He subsequently submitted expenses claims for a lunch (consisting of two rounds of sandwiches and two coffees) and a dinner (consisting of pesto pasta and Bolognese).

Questions were raised about his expenses claim by the managers due to authorise them. They were asking whether he was claiming for meals for more than one person given the content of the claims. Mr Fekete insisted multiple times via email (to increasingly senior managers) that he was on the business trip alone and had eaten all the meals himself.

The matters escalated to a formal investigation. Mr Fekete was evasive when asked direct questions during that month and still maintained that he had not shared the meals (that he had submitted the expenses claims for) with his partner.

Only sometime after the formal investigation did he admit that he had shared the meals with his partner, who had accompanied him on the business trip. He referenced suffering bereavement at the time (linked to a close family's members death) and being on sick leave and strong medication when he was answering initial questions about the expenses.

Citibank dismissed him for gross misconduct, relying on both submitting the false expenses and then making false statements when subsequently asked about them, including during his investigation meeting.

Mr Fekete brought a Tribunal claim for unfair dismissal and wrongful dismissal

Employment decision

The Employment Tribunal found that the dismissal was fair.

Mr Fekete was employed in a position of trust in a global financial institution. Even if he had initially mistakenly filed the expense claim, he repeatedly denied that the meals had been shared with his partner and only owned up after repeatedly misleading various managers of increasing seniority.

The case was not about the sums of money involved (which were small) but about Mr Fekete not being open and honest, and in particular failing to make a full and frank disclosure at the first opportunity. Dismissal in relation to his dishonesty when asked about the expense claims fell within the band of reasonable responses.

His conduct also amounted to gross misconduct, meaning that Citibank were entitled to dismiss without notice (so the wrongful dismissal claim also failed).

The Employment Tribunal also commented that the fact that Citibank had not suspended Mr Fekete or limited his duties prior to dismissal did not detract from the seriousness of the allegations faced by him, nor the fairness of his dismissal. This is a point we often see argued by employees when employers have opted not to suspend but then do go on to dismiss after a full disciplinary hearing. 

The monetary amount of a false expense claim is irrelevant where the misconduct issue is about dishonesty of an employee. This is similar to scenarios where an employer will dismiss for the theft of something small, such as a penny sweet – it is not so much the financial loss that is at issue, but the honesty and integrity of the employee which is at the heart of every employment relationship.

Citibank's position was also even stronger in this case because (a) they had very strong policies referencing a requirement for honesty from all employees and in particular in investigations and (b) there was very clear evidence of Mr Fekete repeatedly having the opportunity to tell the truth and choosing each time not to come clean.

Case Update: Substantial compensation awarded to homeworker required to be office-based

Follows v Nationwide Building Society

Background

In December 2021, we previously reported on the Employment Tribunal judgment in this case. See our previous article.

In summary, the claimant was employed by the respondent as a Senior Lending Manager working from home. The claimant needed to work from home as she was the carer for her disabled mother.

The respondent undertook a redundancy exercise to reduce the headcount of Senior Lending Managers and decided that all Senior Lending Managers would need to be office-based going forwards. The claimant wanted to remain working from home as she believed the role could continue as per her existing arrangements.

The respondent asked if anyone wished to take voluntary redundancy. There were more than enough volunteers to meet the required reduction. However, the respondent only accepted some of the voluntary redundancy applications and made the claimant redundant.

The Employment Tribunal upheld the claimant's claim of indirect associative discrimination on grounds of disability.

Employment Tribunal remedy decision

The Employment Tribunal's recent remedy judgment has confirmed that Nationwide has been ordered to pay the former manager £345,708.

The compensation award was made up of loss of salary, bonus, pension, and other benefits, in addition to an injury to feelings award, 20% ACAS uplift and relevant interest.

What does this mean for employers?

Employers should be mindful of this decision, particularly if they are trying to encourage workforces back into the office. Where employees are reluctant to return, we would encourage employers to fully understand the reasons as to why that is, and to seek advice from your usual Foot Anstey contact if necessary to avoid similar costly mistakes.

Requirement for community nurses to work flexibly was not indirect sex discrimination

Dobson v Cumbria Partnership NHS Foundation Trust

Background

The claimant was employed by the respondent as a community nurse. All members of the claimant's team worked flexibly, including other women who had caring responsibilities for their children, though in that group the claimant was the only person caring for disabled children.  

In 2008, the claimant made a flexible working request and the respondent agreed to reduce her hours to 15 a week, working Wednesdays and Thursdays only.

Following a review in 2016, the respondent sought to introduce more flexible working. It introduced a requirement that community nurses work flexibly, including at weekends. The majority of the claimant's team worked one weekend per month.

The claimant was unable to comply because of her caring responsibilities for her children.

The respondent sought to explore options available to the claimant and a possible compromise. However, the claimant maintained her position that no change of any kind could be contemplated.

When the respondent considered it had exhausted all compromise options with the claimant, the respondent terminated the claimant's contract and offered her ongoing employment on new terms which required her to work more flexibly. The claimant did not accept the new terms.

The claimant brought a claim for unfair dismissal and indirect sex discrimination.

Employment Tribunal decision

The Employment Tribunal initially dismissed the claimant's claim. However, she successfully appealed to the Employment Appeals Tribunal who remitted the claim back to the Employment Tribunal, noting they had erred in not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.

The Employment Tribunal has again dismissed the claimant's claim. Whilst the respondent's requirement for its community nurses to work flexibly, including at weekends, did put women at a particular disadvantage compared to men, the requirement was a proportionate means of achieving a legitimate aim.

Namely, the respondent's need to provide care to patients in the community, 24 hours per day, seven days a week and to balance workload amongst the team and reduce the cost of having to use band 6 and 7 registered nurses on a weekend.

Whistle-blower detriment compensation awards: regulatory referral made in bad faith by an employer did not constitute a break in the chain of causation

McNicholas v (1) Care and Learning Alliance (2) CALA Staffbank

Background

The claimant was employed by the respondents as a teacher in a nursery.

The claimant made protected disclosures about practices within the nursery. These included that the nursery was in breach of its legal obligations and that she reasonably believed there was a likely danger to the health and safety of children at the nursery.

The claimant claimed that she was subject to various forms of detriment as a result of her protected disclosures including the extension of her probationary period, her forced resignation and a complaint by both respondents to the General Teaching Council for Scotland (GTCS) about her fitness to teach.  

Employment Tribunal decision

The Employment Tribunal found that the claimant had indeed made protected disclosures and had been subject to detriment by both respondents as a result.

The Employment Tribunal doubted that there was "any real or genuine substance" to the complaints against the claimant made to the GTCS and took the view that these were "retaliation" against her "driven by the disclosures" and that this was known by the respondents at the time of the GTCS referral.

The Employment Tribunal's remedy judgment made awards to the claimant for losses which arose prior to the date when the GTCS decided to further investigate the fitness to teach referral by the respondents.

The Tribunal reasoned that the decision by the GTCS to further investigate the referral broke the chain of causation between the respondents' detrimental action and the claimant's loss. The Tribunal subsequently declined to make any award to the claimant in respect of her pension loss or for her legal expenses in defending the GTCS proceedings.

Employment Appeal Tribunal decision

The claimant appealed the decision of the Employment Tribunal that the decision of the GTCS to further investigate was an event that broke the chain of causation.

The Employment Appeal Tribunal agreed with the claimant that the Employment Tribunal had erred in law in concluding that the decision by the GTCS to investigate the referral to it by the respondent was an event that broke the chain of causation.

On the facts, the decision by GTCS to further investigate the allegations was not an independent, supervening cause of loss – it was a natural and reasonable consequence of the respondents' wrong act. The wrongful act remained the effective cause of the claimant's loss.

The Employment Appeal Tribunal has remitted the case back to the Employment Tribunal for it to reassess the compensation awarded.