Sattar v Citibank NA (2) Citigroup Inc

In assessing unfair dismissal, the tribunal must consider the overall reasonableness of the employer’s investigation and disciplinary process. It need not require a criminal-standard investigation or substitute its own view of the alleged misconduct.

For reasonable-adjustments claims, a duty arises only where a provision, criterion or practice places the disabled employee at a substantial disadvantage compared with non-disabled persons. Where the tribunal permissibly finds that the employee could participate, understood the allegations, had adequate time to respond and could articulate the defence, a detailed comparator exercise may add nothing.

An appellate court will not interfere merely because the tribunal’s reasoning could have been expressed differently. The question is whether its conclusions were permissible on the evidence read as a whole.

The Claimant, a senior bank employee and Code staff member, was summarily dismissed for gross misconduct following concerns about his use of the Respondent’s systems, staff and resources for transactions involving a charity of which he was a trustee.

He brought claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability. The Employment Tribunal dismissed those claims. It found that the Respondent’s investigation and disciplinary process were reasonable, that the Claimant had not suffered substantial disadvantage from the relevant PCPs, and that dismissal fell within the range of reasonable responses.

The Claimant appealed on grounds concerning the investigation, PCP analysis, reasonable adjustments, factual findings and perversity. The central question was whether the Tribunal had made an error of law in reaching those conclusions.

1. Appeal dismissed. Reading the Employment Tribunal’s Reasons fairly and as a whole, its conclusions were permissible on the evidence. The EAT rejected all 12 grounds.

2. The Tribunal was entitled to find that the investigation was reasonable for the purposes of unfair dismissal. Although there was no conventional formal investigation meeting or report, the Claimant had received detailed questions, had opportunities to explain the transactions, and made extensive written representations through solicitors. The required standard was a reasonable investigation, not one equivalent to criminal proceedings. The Tribunal was entitled to assess the process overall, consistently with Shrestha.

3. The Tribunal had, in strict terms, conflated the identification of a PCP with measures designed to ameliorate its effect. That did not undermine the result. Its findings that the Claimant could have attended, understood the allegations, had sufficient time, and could present his defence meant that no substantial disadvantage was established. A constructed comparator would have served no useful purpose on those facts.

4. The Tribunal was entitled to find that a further adjournment pending surgery or completion of the HMRC investigation would not have been reasonable. The Claimant’s proposed external companions were outside the applicable accompaniment criterion, and the Tribunal permissibly found no relevant disadvantage from that restriction.

5. The remaining challenges improperly subjected a lengthy fact-sensitive decision to detailed textual criticism or sought to reargue factual matters. None disclosed perversity or another error of law.

• Employment Appeal Tribunal: Appeal dismissed: [2018] UKEAT 0336_16_0410.
• Employment Tribunal: East London Hearing Centre, Employment Judge Jones sitting with lay members. Claims of disability discrimination and unfair dismissal dismissed. The decision was sent to the parties on 20 September 2016.