Automated Summary
Key Facts
The Employment Tribunal (Employment Judge Emery) ruled on 4 December 2023 that Mr. B Bhagani was unfairly dismissed by Goldenway Global Investments (UK) Limited on 26 July 2022 for gross misconduct. The Tribunal found that the dismissal was automatic unfair dismissal because the claimant made qualifying protected public interest disclosures to the Financial Conduct Authority (FCA) on 21 July 2022. These disclosures included unauthorised appointments of Hong Kong residents as directors without FCA approval, money laundering involving CFD trading profits transferred via disguised third-party payments, Mr. Andrew Luen acting as an unauthorised person in Hong Kong, mind and management of the firm being in Hong Kong with unauthorised persons making decisions, a Chinese espionage agent, and fraudulent intercompany loans. The Tribunal also found the claimant's complaints regarding breach of contract for notice pay and breach of Working Time Regulations were well-founded.
Issues
- The claimant disclosed information to the FCA about unauthorised appointments of Hong Kong directors, money laundering via GWFX, and other regulatory breaches. The tribunal determined this was a qualifying protected disclosure.
- The tribunal concluded that the respondent dismissed the claimant because he made protected disclosures to the FCA, not because of alleged misconduct. The respondent's belief that the claimant was obstructive was not genuine, as they knew the claimant was acting within his regulatory role.
- The tribunal found the respondent did not have a genuine belief the claimant committed gross misconduct. The claimant was acting within his role as Compliance Director by refusing to cooperate until FCA approval was obtained for the new directors.
- The tribunal determined the respondent did not follow proper procedures in dismissing the claimant. They failed to investigate the matter reasonably and did not provide the claimant with a fair opportunity to respond to the allegations.
- The tribunal accepted the claimant was owed payment for statutory holiday entitlement that he had accrued but not taken at the time of his dismissal. The exact amount would be determined at a remedy hearing.
Holdings
- The Tribunal determined that the claimant's complaint of breach of the Working Time Regulations (failure to pay accrued untaken annual leave) was well-founded. The Tribunal found that the claimant was entitled to payment for his accrued but untaken annual leave, which was not provided upon his dismissal.
- The Employment Tribunal found that the claimant's complaint of unfair dismissal was well-founded. The Tribunal concluded that the claimant was unfairly dismissed because he made qualifying public interest disclosures to the Financial Conduct Authority. The Tribunal determined that the respondent's dismissal of the claimant was not based on genuine misconduct but was instead a direct result of the claimant's whistleblowing activities.
- The Tribunal determined that the claimant's complaint of automatic unfair dismissal was well-founded. The claimant was dismissed because he made qualifying public interest disclosures to the FCA. The Tribunal found that the respondent knew the claimant had reported to the FCA about regulatory breaches, including unauthorized appointments of directors, money laundering, and other issues, and that this was the principal reason for his dismissal.
- The Tribunal found that the claimant's complaint of breach of contract in relation to notice pay was well-founded. The Tribunal concluded that the claimant was dismissed without proper contractual notice and that the respondent did not have a valid reason to dismiss the claimant without following proper procedures.
Remedies
- A Remedy Preliminary Hearing has been scheduled to discuss case management steps and set a hearing date for a full Remedy Hearing to determine the exact amounts for notice pay and holiday pay.
- The tribunal ruled that the claimant was automatically unfairly dismissed because he made qualifying public interest disclosures to the FCA, which was the principal reason for his dismissal.
- The tribunal ruled that the claimant is entitled to his contractual notice pay as his dismissal was in breach of contract.
- The tribunal accepted the claimant received no wages in lieu of untaken holiday entitlement on his dismissal and will hear evidence on the exact amount at a Remedy Hearing.
Legal Principles
- The employer must prove on the balance of probabilities that the dismissal was not because of the protected disclosure, as established in case law and statutory provisions. The tribunal found the employer failed to meet this burden.
- The standard of proof required for the employer to show the dismissal was not due to the protected disclosure is the balance of probabilities, which is the standard used in civil cases. The tribunal accepted the claimant had established a prima facie case.
Precedent Name
- Darnton v University of Surrey
- Kuzel v Roche Products Ltd
- Parsons v Airplus International Ltd
- Chesterton Global Ltd v Nurmohamed
- Fecitt v NHS Manchester
- Panayiotou v Kernaghan
- Jesudason v Alder Hey Children's NHS Foundation Trust
- Ibrahim v HCA International
- Harrow London Borough v Knight
- Yewdall v Secretary of State for Work and Pensions
- Blackbay Ventures Ltd v Gahir
Cited Statute
- Employment Rights Act 1996, section 103A
- FCA Regulation SUP 10C
- Money Laundering, Terrorist Financing and Transfer of Funds (Information on Payer) Regulations 2017
Judge Name
Employment Judge Emery
Passage Text
- We concluded that the respondent must have realised the claimant had discussed with the FCA the concerns he had repeatedly raised in and since his 7 June 2021 email.
- We therefore conclude that the substantial reason why the claimant was dismissed was because he had made whistleblowing public interest disclosures to the FSA.
- The respondent accepts that this was a qualifying public interest disclosure.