Arthur v Ghana International Bank Plc

Under section 98(4) of the Employment Rights Act 1996, a tribunal must assess the investigation, process, factual conclusions and sanction against the range of reasonable responses. A senior employee with responsibility for regulatory compliance may reasonably be dismissed for knowingly accepting and transporting a very large cash sum without required due diligence, even if the employer has previously tolerated deficient compliance.

For wrongful dismissal, the employer must prove an actual contractual breach serious enough to justify summary dismissal; a reasonable belief in misconduct is insufficient. Separate findings may sometimes be required, but not where the material facts establishing the fundamental breach are undisputed.

The claimant, the respondent bank's second most senior officer, was summarily dismissed after accepting and transporting substantial cash for a politically exposed customer without completing due diligence or using insured transport. An independent appeal officer upheld the dismissal on those matters, while giving the claimant the benefit of the doubt about later processing of the deposit and transfer.

The Employment Tribunal, London Central, dismissed claims for unfair dismissal and wrongful dismissal in a judgment dated 11 December 2017. The claimant appealed, alleging failures to address the bank's wider compliance culture and alleged approval by its chief executive, to identify the contractual term breached, and to address disparity of treatment.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing either claim.

2. On ordinary unfair dismissal, section 98(4) of the Employment Rights Act 1996 required the Tribunal to decide whether the employer's investigation, process, conclusions and sanction fell within the range of reasonable responses. It had directed itself correctly and was entitled to find that dismissal was reasonable.

3. The appeal officer had based dismissal on the claimant's acceptance and transportation of the cash before he reported the matter to the chief executive. The Tribunal was therefore not required to determine whether the chief executive later approved the transaction. Any lax compliance culture did not absolve this experienced senior officer of his duty to secure compliance with banking and money-laundering requirements. The Tribunal was entitled to treat the failures of due diligence and insecure transportation as serious misconduct which the claimant knew was unacceptable.

4. The Tribunal also addressed disparity. The guidance in Hadjioannou v Coral Casinos Ltd, [1981] IRLR 352, did not make the chief executive's treatment decisive. The claimant could not reasonably expect his conduct to be overlooked, and the two men were not truly comparable because the material damage was done when the claimant accepted and transported the cash.

5. Wrongful dismissal required proof that the claimant had actually committed a contractual breach sufficiently serious to justify termination without notice, rather than proof that the employer had reasonably reached that conclusion. Although the Tribunal did not identify a precise express term or repeat all of its findings, the undisputed pre-report conduct and its findings established a fundamental breach, including of the relationship of trust and confidence. No further finding about later approval or disparity was required.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal's dismissal of the unfair-dismissal and wrongful-dismissal claims was upheld.
• Employment Tribunal, London Central: by a judgment dated 11 December 2017, dismissed the claimant's complaints of unfair dismissal and wrongful dismissal.