Sattar v Citibank NA & Anor

The Court of Appeal dismissed the employee's appeal against the Employment Tribunal's and Employment Appeal Tribunal's findings that his summary dismissal for gross misconduct was fair and that there was no breach of the duty to make reasonable adjustments under the Equality Act 2010. The court applied the principles in BHS v Burchell and section 98(1) and 98(4) of the Employment Rights Act 1996 when assessing whether the employer had a reasonable belief on reasonable grounds and had carried out a reasonable investigation. The court held that, taken in the round, the Bank's investigatory and disciplinary process — including reliance on a written procedure in light of Occupational Health advice — was one a reasonable employer could adopt and gave the appellant a full opportunity to respond.

Subsidiary findings included that the appellant: (i) had been properly placed on suspension when investigatory material suggested a real risk to evidence and regulators; (ii) was a senior "Code staff" member whose conduct posed a reputational risk to the Bank; (iii) was able, on the facts found, to participate in the disciplinary process and therefore was not substantially disadvantaged for Equality Act purposes; and (iv) although one complaint about involvement of a junior employee (Mr Basu) had not been clearly particularised at the first stage, that omission did not make the overall procedure unfair or invalidate the dismissal given the opportunity to address the point on appeal and the centrality of the unauthorised use of systems.

Background and parties. The appellant was a very senior employee (Global Head of Treasury and Trade Solutions Operations and "Code staff" member) dismissed for gross misconduct by Citibank N.A. He brought claims for unfair dismissal and disability discrimination, the latter relying on the duty to make reasonable adjustments under the Equality Act 2010. The Employment Tribunal dismissed all grounds; the Employment Appeal Tribunal dismissed the appeal; permission to appeal to the Court of Appeal was granted.

Nature of the claim and relief sought. The appellant challenged the fairness of the dismissal (Employment Rights Act 1996, section 98) and alleged the Bank failed to make reasonable adjustments (Equality Act 2010, section 20) in respect of disciplinary procedures in light of his brain tumour.

Procedural and factual background.

• The Bank investigated transfers involving a charity set up by the appellant (Unheard Voices Trust) after HMRC enquiries and a production order; CSIS carried out an internal investigation which identified apparent unauthorised uses of the Bank's staff transfer system.
• The appellant was suspended and received a disciplinary letter identifying sample transactions; the Bank proposed a written disciplinary procedure after Occupational Health advised that a written process would assist the appellant.
• The disciplinary and appeal decision-makers concluded the appellant had improperly used Citi systems and staff in ways that created an appearance of impropriety, and dismissed and then upheld dismissal on appeal.

Issues for the Court. (i) Whether the investigatory and disciplinary procedures were so defective as to make dismissal unfair (including whether there was an unreasonable secret investigation, inadequate particulars and an unfair written procedure); (ii) whether the Bank failed to identify charges clearly (notably the allegation concerning use of junior staff); (iii) whether the Bank failed to make reasonable adjustments under the Equality Act 2010 by not postponing until after surgery or by not adopting a more iterative written procedure; and (iv) whether summary dismissal was a reasonable sanction.

Reasoning and conclusions. The Court emphasised that the tribunal must be viewed as having to decide whether the employer had a reasonable belief on reasonable grounds and had carried out a reasonable investigation (Burchell approach). The Court concluded:

• The investigatory process, viewed in the round, was reasonable. The appellant knew in general terms the transactions under scrutiny; the 8 July meeting and subsequent correspondence alerted him to concerns and gave him opportunity to explain. Suspension and progressing disciplinary steps before every factual thread of the investigation was complete were not inherently unfair given regulator and evidence-protection considerations.
• The written disciplinary procedure, proposed after Occupational Health assessment and agreed (or tacitly accepted) in correspondence, was a reasonable alternative and in some respects more favourable since it allowed considered written responses and legal assistance. The decision-makers could have asked follow-up questions if necessary and the tribunal was satisfied that they would have done so had clarification been needed.
• Although one aspect (involvement of Mr Basu negotiating a relative's credit card debt) had not been clearly particularised at first instance, that omission did not render the dismissal unfair because the principal ground — improper and unauthorised use of systems by a senior Code staff member, creating a risk to reputation — remained fully particularised and justified dismissal; the appellant had an opportunity to address matters on appeal.
• On disability discrimination, the Employment Tribunal erred in conflating the PCP with measures taken to ameliorate it, but on the facts it was entitled to find that the appellant could participate in the process and that the written procedure was a reasonable adjustment; delaying until after surgery or adopting a different iterative written process was not required.

Outcome. The appeal was dismissed.

The appeal is dismissed. The Court held that the Employment Tribunal had not erred in law or reached a perverse conclusion: the employer had a reasonable belief on reasonable grounds, carried out a reasonable investigation when viewed in the round, the written disciplinary procedure (informed by Occupational Health) was a reasonable alternative and constituted a reasonable adjustment, and summary dismissal for gross misconduct was within the range of reasonable responses.