Nwosuagwu-Ibe v Royal Bank of Scotland

An employer may fairly dismiss a senior, trained employee for gross misconduct without a specific prior warning where the employee knew, or should have known, the seriousness of the procedural breaches. The Employment Tribunal may regard such dismissal as falling within the range of reasonable responses.

In victimisation claims, the initiation and escalation of disciplinary proceedings may themselves be less favourable treatment. The tribunal must identify the reason for that treatment, compare it with the treatment of an actual or hypothetical person who has not done the protected act, and consider realistic non-discriminatory explanations. Unreasonable conduct alone does not establish victimisation. The statutory burden in section 54A does not apply to victimisation under the Race Relations Act 1976; an inference remains permissive under the common-law approach.

An Employment Tribunal cannot determine an unpleaded discrimination complaint unless the claim has been amended.

The Claimant, a Black woman of Nigerian origin and a branch manager employed by the Royal Bank of Scotland, was dismissed for failures concerning a large-payment procedure and the unauthorised approval of loans. She had previously raised a grievance alleging, among other matters, racism by her manager.

The Employment Tribunal dismissed her unfair-dismissal claim and two victimisation complaints. It upheld a further victimisation complaint concerning the inclusion of a Bronze Alert incident in the disciplinary process, and awarded compensation. The Claimant appealed the dismissal of her claims. The Bank cross-appealed the finding concerning the Bronze Alert.

The central issues were whether the dismissal was unfair, whether the Tribunal had addressed the alleged initiation and escalation of disciplinary action as a detriment for victimisation purposes, and whether it had jurisdiction to uphold the Bronze Alert complaint.

1. The Claimant’s unfair-dismissal appeal was dismissed. The Employment Tribunal was entitled to find that the Claimant’s failures in the large-payment procedure and in authorising loans amounted to gross misconduct. She was a senior and adequately trained employee who knew, or should have known, the gravity of those breaches. A specific warning was unnecessary in those circumstances. The Tribunal was entitled to conclude that dismissal fell within the range of reasonable responses.

2. The Tribunal had given adequate reasons. Rule 30(6) of the Employment Tribunal Rules of Procedure does not require a mechanical checklist. Reasons suffice if, read as a whole, they identify the issues, relevant findings, applicable law and the application of law to fact. The unfair-dismissal challenge was in substance a perversity challenge and did not meet the high threshold for intervention.

3. The Claimant’s appeal on the two dismissed victimisation complaints was allowed and remitted to a fresh Employment Tribunal. The Tribunal had confused the initiation and investigation of disciplinary proceedings with the later decision to impose a sanction. Both may constitute less favourable treatment. It had not clearly decided why the manager initiated and escalated the process, or whether that treatment was because of the protected acts.

4. At the rehearing, the Tribunal must compare the treatment with that of an actual or hypothetical person in similar circumstances who has not done a protected act. It must make clear findings of primary fact, consider realistic non-discriminatory explanations, and avoid inferring victimisation merely from unreasonable conduct. Section 54A of the Race Relations Act 1976 does not govern victimisation claims. Under King, an unexplained evidential case permits, but does not compel, an inference.

5. The Bank’s cross-appeal on the Bronze Alert was allowed. That allegation was neither pleaded in the ET1 nor included as a discrete issue or witness-statement complaint. In the absence of an amendment, the Tribunal lacked jurisdiction to determine it. The finding of victimisation and the associated award in respect of that allegation could not stand.

• Employment Appeal Tribunal: The Claimant’s appeal against dismissal of the unfair-dismissal claim was dismissed. Her appeal concerning the dismissed victimisation complaints was allowed and remitted to a fresh Employment Tribunal. The Bank’s cross-appeal against the Bronze Alert victimisation finding was allowed.
• Employment Tribunal, London Central: Judgment dated 22 September 2010, with reasons sent on 24 September 2010. It dismissed the unfair-dismissal claim and two victimisation claims, upheld one victimisation claim, and awarded £2,147 including interest.