Mr O Argence-Lafon v Ark Syndicate Management Ltd — 2020

The claimant, a senior underwriter in Energy 3902, raised concerns about the ENI Ken Bau claim from November 2019 onwards. The tribunal found that his oral comments to Mr Burton and Mr Dawson on 27 November 2019, and his email to Ms Fenner on 4 May 2020, were protected disclosures because he reasonably believed the claim was probably fraudulent and that the respondent or its advisers might be failing to comply with legal obligations. It held that his later communications in September 2020 and in April and May 2021 were not protected disclosures because, by then, multiple experts had independently reached the opposite conclusion and his belief was no longer reasonable.

On detriment, the tribunal found that setting the claimant three personal objectives on 20 November 2020, relating to risk count, submission count and premium written, was capable of being a detriment. It nevertheless concluded that those objectives were not imposed because of the protected disclosures. The tribunal accepted that Mr Burton and Mr Dawson were frustrated by the claimant's continued challenge to the adjusted claim after the expert reviews, but found that this frustration was distinct from the disclosures themselves. Because the later detriment complaint failed, the tribunal said it had no jurisdiction to consider the 20 November 2020 complaint.

The tribunal also found that moving the claimant into the formal PIP process on 6 May 2021 was a detriment, but again not one caused by protected disclosures. It held that the decision to move to formal review had already been communicated on 22 March 2021 and was driven by performance concerns in the first months of 2021. The claimant's later statements in late April and early May 2021 were not protected disclosures in any event.

The section 103A automatic unfair dismissal complaint failed because the tribunal found that the dismissal on 9 August 2021 was not because of protected disclosures. The dismissal was based on the claimant's refusal to engage with the PIP and on Mr Beaton's view that there had been a breakdown of trust and confidence after the claimant alleged that Mr Burton and Mr Dawson had been complicit in fraud. The section 98 complaint succeeded because the tribunal found the dismissal unfair: the respondent did not carry out a reasonable investigation into whether it was appropriate to use the November 2020 objectives within the PIP process, and it relied on the trust-and-confidence issue at the disciplinary hearing without giving the claimant advance notice. No remedy was assessed in this liability judgment.