Renton v Cantor Fitzgerald Europe

An appellate tribunal should read an employment tribunal’s reasons as a whole. Reasons are sufficient if they identify the issues, material findings, applicable law and reasoning so that the parties can understand why they succeeded or failed and an appellate court can identify any error of law. An appeal should not isolate passages or demand an academic analysis of the evidence.

In determining the reason for dismissal, a tribunal may find one potentially fair conduct reason with several factual aspects. It need not rank those aspects into a hierarchy. Nor does rejection of the employer’s asserted reason require acceptance of the employee’s alternative reason.

A without-prejudice letter intimating a High Court claim beyond the employment tribunal’s jurisdiction was not, on these facts, a written grievance for an unlawful-deduction claim.

The claimant, formerly the respondent’s head of foreign exchange, was dismissed when his contract was not renewed. The factual background concerned an overpaid bonus which he did not report and difficulties in a high-risk United States retail-client business.

The London Central Employment Tribunal upheld his ordinary unfair-dismissal claim under Employment Rights Act 1996 sections 98 and 98A. It found a conduct reason for dismissal, but an unreasonable investigation and unfair procedure. It rejected his claim that dismissal was for a protected disclosure under section 103A, reduced the awards by 25% for conduct, and held that it lacked jurisdiction over an unlawful-deduction complaint because no written grievance had been made.

The claimant appealed the protected-disclosure, contributory-fault and jurisdiction rulings. The respondent cross-appealed conditionally against the 50% uplift.

1. Appeal dismissed. The Employment Tribunal’s reasons complied with rule 30(6) of the Employment Tribunal Rules of Procedure. They identified the issues, findings, law and application of law. Applying Meek and the caution in English v Emery Reimbold & Strick Ltd, the EAT held that reasons need not be an academic treatise. They were sufficient for the parties to understand the outcome and for the EAT to identify any question of law.

2. The claimant’s challenge to the rejection of his protected-disclosure case improperly isolated passages from the decision. Read as a whole, the Tribunal correctly stated section 43B and distinguished an express disclosure of existing regulatory breaches from general discussion of future regulatory compliance. It had rejected, for clear factual reasons, the claimant’s case that he made the alleged disclosure.

3. The Tribunal was entitled to find that dismissal was for conduct, with two aspects: concerns arising from the United States retail-client business and the claimant’s response to the bonus overpayment. A conduct reason may have more than one aspect; the Tribunal need not subdivide those matters into a hierarchy of culpability. Further, as explained in Kuzel v Roche Products Ltd, an employer’s failure to establish its asserted reason does not logically require acceptance of the employee’s asserted reason.

4. The 25% reduction for contributory conduct disclosed no error of law. The Tribunal had taken account of the limited role of the bonus issue in the reasons for dismissal and tailored the reduction accordingly.

5. The Tribunal was entitled to hold that a without-prejudice letter intimating a High Court claim, valued well above the tribunal’s jurisdictional limit, was not a written grievance for an employment-tribunal unlawful-deduction claim. Mark Warner Ltd v Aspland, which accepted that a solicitor’s letter could in principle constitute a grievance, did not compel a contrary conclusion on these facts.

6. As the appeal failed, the EAT did not determine the respondent’s conditional cross-appeal concerning the 50% uplift.

• Employment Appeal Tribunal: Appeal from the London Central Employment Tribunal dismissed.
• Employment Tribunal: The claimant succeeded in ordinary unfair dismissal under sections 98 and 98A of the Employment Rights Act 1996, but his section 103A protected-disclosure complaint and unlawful-deduction complaint were dismissed or rejected for want of jurisdiction.