Ms C D’Souza, counsel For the v Respondent — 2020

The claimant was a Chinese national employed by Credit Agricole in precious metals trading. The tribunal found that during the March 2020 gold volatility episode the desk was working under pandemic rotation arrangements and the bank was using a mark to model valuation approach for futures. It accepted that the EFP dislocation created a very large mark-to-market exposure, but found that the respondent's actual loss was caused by the EFP breakdown and the bank's later decision to unwind positions, not by any action by the claimant.

The tribunal found that the claimant had opportunities to escalate the position between 23 and 30 March 2020 but did not do so before Louis McCauley raised the issue to Tony Botting on 30 March. It accepted that the claimant's 4 May 2020 disciplinary submission and later appeal submissions contained disclosures about homeworking limitations and the valuation methodology, but held that the whistleblowing detriment and automatic unfair dismissal claims failed because those disclosures did not materially influence the suspension, investigation, dismissal, or later handling of the case. The tribunal therefore did not need to decide every public-interest or good-faith issue once causation was absent.

The unfair dismissal claim succeeded. The tribunal held that Behnouche Mostachfi's investigation was not independent and did not properly interview key witnesses. It also held that Laurent Chedin's disciplinary process was unfair because he failed to interview witnesses suggested by the claimant, proceeded on the mistaken basis that there were four allegations and that the claimant had been on the desk when Mr Assaf visited, and did not properly consider the pandemic working arrangements, the valuation model, or the wider context of failures by others on the desk and in management. The tribunal rejected the respondent's alternative SOSR rationale, held that the dismissal fell outside the range of reasonable responses, and found that the disciplinary policy would have pointed to a final written warning rather than dismissal.

The tribunal further held that, had a fair process been followed and the policy been applied correctly, the claimant would have remained employed either on the PM desk or in another trader role, with an improvement plan or redeployment, and a final written warning for 18 months. It also found that the claimant contributed to his dismissal by failing to escalate the issue between 23 and 30 March 2020, so any compensatory award would be reduced by one third. No monetary remedy was set because the hearing was on liability only.

On race discrimination, the tribunal rejected the claim that the suspension, investigation, disciplinary process, dismissal, and appeal were carried out because of race. It upheld the complaint only in relation to Tony Botting's 14 May 2020 remark to Laurent Chedin about Asian people and loss of face, which the tribunal treated as negative stereotyping and direct race discrimination. It found that the other pleaded remarks and treatment, including Mr Mostachfi's comment about the claimant's way of communicating, were not caused by race.