Ms E. Volkova v Credit Suisse (UK) Limited and 3 others — 2019

The claimant, an investment consultant, was disciplined after an August 2018 structured-note trade for Client A. The tribunal found that she had given investment advice before completing suitability checks, executed a PRC 4 trade on an account that was already in breach or otherwise unsuitable, and later failed to be frank with Compliance and management about what had happened. The trade was ultimately unwound at a cost to the bank of CHF 22,000. A prior compliance review and written warning in July 2018 were part of the background to the later disciplinary process.

On the whistleblowing issues, the tribunal accepted that the claimant made protected disclosures in the 10 September 2018 grievance, the October 2018 meetings and email, and the 31 July 2019 disciplinary meeting, so far as those disclosures concerned training, supervision and support for investment consultants. It did not accept that the other matters relied on under the list of issues were protected disclosures. In particular, the allegations of bullying and harassment by Ms Falk and Mr Keogh were not protected disclosures, and the remaining systems and operations complaints were not treated as qualifying disclosures.

The tribunal dismissed the detriment claims. As against R1, it held that the investigation and disciplinary steps were not taken on the ground that the claimant had made protected disclosures, even though the overall process was slow and some aspects could have been handled better. In Claim 3, the claims against Ms Falk and Mr Keogh were dismissed because they were brought out of time and there was no application to extend time. The claim against Ms Griffin was dismissed on the merits because the tribunal found that her investigation and dismissal rationale were not unfair, biased, or misleading, and were not motivated by the claimant's disclosures.

The automatic unfair dismissal claim under s.103A ERA 1996 failed because the tribunal found that the sole reason for dismissal was conduct, not whistleblowing. The ordinary unfair dismissal claim under s.94 ERA 1996 succeeded, but only on a procedural basis: the tribunal held that the combined grievance and disciplinary process took an unjustifiably long time, and that this delay made the dismissal unfair even though the underlying misconduct findings were open to the decision-maker. The tribunal also found that the claimant had contributed to the conduct findings, and it left the amount of any reduction, together with Polkey and any ACAS uplift, to a later remedy hearing.