Claimant v United National Bank Ltd and Mr B Firth — 2022

Mr M Daniels was the chief risk officer of United National Bank Ltd from July 2019 until his dismissal on 1 April 2021. The case arose against the background of the bank's s166 review with KPMG and a series of communications in January to March 2021 in which the claimant raised concerns about risk controls, the Bloomberg licence for Risk, a conflict of interest involving Faraz Haider, the Nationwide trade, internal audit independence, the Roshan Digital Account approval process, working hours and resources, and a draft PRA report. The tribunal accepted that several of those communications were protected disclosures, including PD2, PD3, PD6, PD7, PD8, PD10, PD11, PD12, PD14, PD15 and PD18, but rejected PD9, PD13, PD16 and PD17.

In applying s.43B ERA 1996 and the authorities it cited on the disclosure of information threshold, the tribunal held that the claimant's emails and oral reports contained sufficient factual content and specificity, and that he reasonably believed the matters disclosed tended to show breaches of legal obligations and, in some instances, risks to health and safety. It treated the bank's internal controls and new product approval processes as part of its compliance with PRA-related legal obligations, and found that the claimant, as CRO, was entitled to regard those matters as regulatory issues in the public interest. By contrast, it found that the risk culture report issue did not disclose information of sufficient legal content, the ExCo Roshan comment lacked specificity, the attestation point was not shown to involve concealment, and the HR conversation about working hours was not established as pleaded.

The tribunal found that the decision to dismiss was taken at the 22 February 2021 INED and management meeting and later effected by the Board on 1 April 2021, but that the reasons recorded in the dismissal discussion and letter were not the true reason for dismissal. It concluded that the principal reason was the claimant's escalating protected disclosures, particularly his 22 February 2021 emails about the Nationwide trade and escalation to the PRA via the INEDs. Accordingly, the first respondent automatically unfairly dismissed him, and the dismissal itself was also a detriment under s.47B ERA 1996. The tribunal rejected the other alleged detriments, finding that several were chronological impossibilities, part of the dismissal process itself, or not shown to be causally linked to protected disclosures.

The ordinary unfair dismissal claim failed because the claimant had less than two years' service, so he lacked the right to bring that claim. The tribunal nevertheless assessed Polkey at 40%: it found a significant risk that the bank would have dismissed him in any event because of pre-existing concerns about judgment and communication, but not that dismissal was more likely than not. No remedy was decided in this judgment; a remedy hearing was listed for 17 March 2023.