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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941 (08 July 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/941.html Cite as: [2022] IRLR 854, [2022] ICR 1513, [2022] WLR(D) 302, [2022] EWCA Civ 941 |
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ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Auerbach
EA 2020/000357/000438 JOJ
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LADY JUSTICE SIMLER
and
LADY JUSTICE ELISABETH LAING
____________________
LING KONG |
Appellant |
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- and - |
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GULF INTERNATIONAL BANK (UK) LIMITED |
Respondent |
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PROTECT (THE WHISTLEBLOWING CHARITY) |
Intervener |
____________________
Nicholas Siddall QC and Grahame Anderson (instructed by Bird & Bird LLP) for the Respondent
James Laddie QC and Andrew Smith (instructed by BDBF LLP) for the Intervener
Hearing date: 26 May 2022
____________________
Crown Copyright ©
This judgment will be handed down remotely by circulation to the parties or their representatives on 8 July by email and released to the National Archives. A copy of the judgment in final form as handed down should be available shortly thereafter but can otherwise be obtained on request by email to the judicial Office (press.enquiries@judiciary.uk).
Lady Justice Simler:
Introduction
The relevant statutory provisions
"47B. Protected disclosures.
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the round that the worker has made a protected disclosure.
(1A) A worker ("W") has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –
(a) by another worker of W's employer in the course of that other worker's employment, or
(b) by any agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure.
(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.
(1C) ...
(1D) …
(1E) …
(2) This section does not apply where –
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of Part X).
(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", worker's contract", "employment" and "employer" have the extended meaning given by section 43K."
It is now well established that section 47B is infringed where the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the individual concerned: see Fecitt and others v NHS Manchester [2011] EWCA Civ 1190, [2012] ICR 372 ("Fecitt") (Elias LJ at [45]).
"103A. Protected disclosure.
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
It is for the employer to show the reason (or if more than one, the principal reason) for the dismissal: see section 98(1) ERA. For a dismissal to be automatically unfair under section 103A, the protected disclosure must be the reason or the principal reason for the dismissal.
The facts and tribunal findings relevant to this appeal
"In summary, the issue in relation to this was that the claimant considered that the industry-standard MRPA template was designed for bank-to-bank lending and not for use with non-bank institutions. She considered that it had insufficient safeguards in it for the use that the Respondent was making of it with the GTOP fund, in particular in relation to the legal effectiveness and enforceability of the securities on transaction level and the lack of provisions in the MRPA agreement to address the fact that the GTOP fund's counterparties were non-bank corporate entities and to require them to carry out appropriate KYC [Know Your Customer] and due diligence checks and monitoring on underlying borrowers. ..."
"PD4 – at a meeting between the claimant and Jenny Harding on 22 October 2018 in which the claimant reiterated concerns regarding the MRPA agreement, particularly the 'bank to bank' issue (i.e. the same issue as PD3)."
"140. The Claimant's email makes clear why, quite reasonably in our judgment, the claimant was unhappy with management's responses to her draft audit report. This prompted Ms Harding to go to the claimant's office. We find that she went because she felt the claimant's email was accusatory (as it was, both with regard to the delay and in relation to the amendments and deletions to the audit findings). She entered without knocking. We find that she was agitated from the outset of this meeting. She picked up the draft GTOP report from the Claimant's desk and asked to discuss it. (Ms Harding in evidence was unclear about why she went to the claimant's office, but we find it was the email we have quoted in full above as otherwise there is no explanation for why she went to the Claimant's office at that time and without the draft GTOP report in hand.)
141. Ms Harding's evidence was that the claimant immediately raised the issue in the email about why Ms Harding did not realise that the MRPA was a bank-to-bank document. It was clear from the claimant's evidence to tribunal that this was still a very important point for her (it is her PD4) and that she considered that this was a point that Ms Harding ought to have known. We therefore accept that the Claimant raised this with Ms Harding and questioned her legal awareness about the matter that constituted her PD4.
142. However, Ms Harding's evidence went further. She said that three or four times the Claimant had said that she (Ms Harding) should not be in the role of Head of Legal "if [she] was asking questions like that" and was shocked that she was. She said that the claimant said that she would escalate her concerns about her holding the title of Head of Legal to the CEO. Ms Harding said that this upset her so much she had to leave the room.
143. Ms Harding's account does not quite accord with that of the claimant, although there is agreement as to the overall shape of the conversation, including that it was Ms Harding who went without an appointment to the Claimant's office, that the discussion focused immediately on the email … and 'the bank-to-bank issue' and that it was Ms Harding who left upset.
144. We do not, however, accept that the Claimant questioned whether Ms Harding should have been in the role of Head of Legal or threatened to escalate that issue to the CEO. The Claimant was concerned about Ms Harding's legal knowledge as is apparent from the email …, and she did question her legal awareness, but what she threatened to escalate to the CEO was the lack of management responses to the draft GTOP audit report. We so find because it is clear from the claimant's emails around this time that that was the issue of chief concern to her and she had already asked Mr Mohammed about escalating it to the CEO. What upset Ms Harding and led to Ms Harding walking out, slamming the door, however, was what the Claimant said about her PD4 and her legal awareness of that issue.
145. For the avoidance of doubt, we find that the Claimant did not in this conversation question Ms Harding's professional integrity as she did not question her honesty or her principles. She questioned her legal awareness.
146. We add that a further reason for rejecting Ms Harding's account of the conversation is that the point on which she now places so much weight (the Claimant questioning whether she should be in the role of Head of Legal) does not appear to be something she said to anyone at the time, even though she spoke to a number of people about the incident immediately after the event. Mr Henderson's evidence was that after the meeting Ms Harding said that she was being accused of not doing her job properly and of not understanding issues raised in the fund audit. Mr Maskall said that Ms Harding told him that the claimant had questioned her integrity and professional ability. Ms Yates said that Ms Harding said that she felt her integrity and ability to do her job had been called into question by the Claimant."
"155. The Claimant responded at 12.29, blind copying in Mr Mohammed. Her email is in our judgment conciliatory in tone and careful in the way that it explains why the Claimant had felt it important to raise the bank-to-bank issue only privately with Ms Harding so as to avoid causing her any embarrassment by including it in the draft audit report circulated more widely:
"I have no intention to hurt you in anyway and I have no concern on your professional integrity.
Since all MRPA agreements are based on a template designed for bank to bank, it is important to tailor legal provisions to add further protection to GIB since we are dealing with newly established, less capitalised, even previously dormant corporate entities. Therefore, I was a bit uncomfortable when the legal team questioned why it is 'bank to bank' since it is a reflection of legal awareness. If I had raised this 'bank to bank' issue in the audit report, the reader might have raised a question on the professional awareness (not integrity). Therefore, as I mentioned to you, I do not mind raising it privately with you and deal with it on offline basis to avoid any personal impact to you.
One the other side, when you slammed the door and walked out with anger, honestly I did not feel comfortable as I did feel it was a type of intimidation to auditor. I would like to emphasize that all auditees have full rights to disagree, however we need formal responses as opposed crossing/removing/deleting our audit observations and reassigning the ownership to other departments.
Lastly, I agree with you to discuss these issues again is a good approach since a peaceful professional relationship in the workplace is very important. Happy to discuss it further tomorrow when we meet."
156. For the avoidance of doubt, we again find that in this email, the Claimant was, as she made explicitly clear, questioning Ms Harding's legal awareness and not her professional integrity.
…
158. Ms Harding responded to the Claimant's email at 12.29 ten minutes later: "I did not walk out with anger, I walked out like I did because I was upset and not surprisingly. You were in effect questioning my ability to do my job and you have done so again in your email below. Let's chat tomorrow and I'm going to have to think about whether or not to ask someone else to come along. Let's chat tomorrow."
159. Ms Harding forwarded the email chain to Ms Yates.
160. Following receipt of the blind copy of the above email (12.29) from the Claimant, Mr Mohammed telephoned the Claimant and spoke to her for over an hour. He told her that the email was totally unacceptable. As he explained in his witness statement to the claimant, contrary to everything he thought he had told the Claimant previously about not allowing interactions to become personal "it called Ms Harding's competence into question, suggesting twice that she lacked legal or professional 'awareness'". He told the Claimant that he "could not defend this behaviour". He urged her to apologise to Ms Harding. …"
"Recent situation involving the Head of Legal which was brought to the attention of both HoHR and CEO. A formal grievance was considered.
- In respect of the Trade finance audit – comment made whereby JH felt that her professional integrity was being questioned. Matter was discussed directly with the HoA but was not resolved satisfactorily (attached). …"
It referred to nine "other situations/feedback provided over the past few years" and common themes emerging such as "little emotional intelligence when dealing with colleagues … dogmatic in her approach". It concluded that whilst her contribution to the audit function was perceived to be high, her "ability to listen and build relationships with colleagues is limited. She is very forensic in her approach to the audits and often it is felt that she does not take proportionate approach in her assessment of the risk …"
"169. Mr Mohammed, Ms Yates and Ms Garrett-Cox met in Bahrain on 21 November 2018. Mr Mohammed gave evidence orally that in this meeting a collective decision was made that the Claimant should be dismissed. When questioned further, he indicated that it had been for him as the Claimant's line manager to make the initial decision, but we find that Mr Mohammed was placed in a position where it would have been difficult for him to have done otherwise. This is because we consider it would have been plain to him from the fact that Ms Garrett-Cox and Ms Yates had travelled to Bahrain especially, and from their approach (as reflected in Ms Yates' briefing email in advance of the meeting), that dismissal was the outcome they sought. We find that the dominant factor in his agreement to dismissal was that he considered the email to Ms Harding on which he had been blind copied to be unjustifiable and 'career limiting'. He also considered her actions regarding the previous incident with José Canepa to have been deeply inappropriate ...
170. Following this meeting, Ms Garrett-Cox determined that the Claimant should be dismissed, and she and Ms Yates presented this view to Mr Sykes as Chair of AROC for approval, which he gave."
The tribunal's conclusions
"d. We further draw the inference that PD3 and PD4 were a material part of her reasons for so acting. The origin of the whole incident is that Ms Harding disagreed with many of the protected disclosures that the claimant made in PD3. She disagreed to the extent that she deleted many of them in a way that we have found she subsequently recognised overstepped the mark and her sensitivity about which was, we have found, part of the reason why she reacted as she did on 22 October (above paragraphs 137, 148, 149). Further, when the Claimant had originally set out the content of PD4 in her email at page 303b, Ms Harding had stated that it made her "uncomfortable" (see above paragraph 129).
e. Yet further, the 'professional awareness' point that the Claimant raised (PD4) was, we find, inseparable in this case from the protected disclosure itself. The making of PD4 by the Claimant in and of itself entailed implicit questioning of Ms Harding's legal awareness because she had overseen the putting in place of the MRPA which the Claimant (reasonably, the Respondent accepts) considered was a bank-to-bank document and thus meant that the Respondent was failing, or likely to fail, to comply with certain legal obligations. We acknowledge that it was not a necessary part of a protected disclosure in law to add to PD4 words such as 'it's a matter of legal awareness', but we find that in this case the Claimant did not raise her concerns about Ms Harding's legal awareness in an unreasonable way.
f. In any event, and perhaps more importantly, we find that Ms Harding's conduct towards the Claimant on 22 and 23 October 2018 was not simply because the Claimant questioned her legal awareness, but also a response to the substance of the protected disclosures that she had made, the content of which she disagreed with."
"221. We find that the principal cause of the Claimant's dismissal was the incident with Ms Harding on 22/23 October 2018. We so find because, despite the various concerns expressed by the Respondent's witnesses about the Claimant over preceding months and years, there is nothing to suggest that dismissal had been contemplated prior to this incident, a point which Ms Yates confirmed in evidence (see above paragraph 161). It is also clearly the matter that was foremost in the minds of those who participated in the decision-making process. It was the first matter mentioned by Ms Yates in her briefing email which we found was written with a view to engineering the Claimant's dismissal (above paragraphs 166-168). It was the matter that was dominant in Mr Mohammed's rationale for agreeing to dismissal (above paragraph 169). And it was the first point mentioned by Ms Garrett-Cox in the dismissal meeting and in the termination letter (above paragraphs 175 and 178).
222. In some cases, our finding in the previous paragraph as to the principal cause for dismissal would be a sufficient finding also as to the reason for dismissal. In this case, however, since the Respondent relies on alternative potentially fair reasons for dismissal (conduct or some other substantial reason), and since the Claimant contends that the principal reason for dismissal was her protected disclosures, and because we have found that the incident with Ms Harding on 22/23 October 2018 involved Ms Harding subjecting the Claimant to a detriment for having made protected disclosures, we have considered very carefully what it was about the incident with Ms Harding that constituted the principal reason for dismissal. We have to decide what part or aspect of the Harding incident it was that constituted the principal reason for dismissal and whether that reason is to be categorised in law as being conduct, some other substantial reason or the Claimant's protected disclosures. In the light of our finding that the incident with Ms Harding was an unlawful detriment, we must also first consider how the principles in Jhuti (above paragraphs 203-204) apply to this situation.
223. The principles in Jhuti require that in most cases we should consider only the decision-maker's reasons for the dismissal. In this case, the relevant decision-makers are (in our judgment), Mr Mohammed and Ms Garrett-Cox. Although we have found (see above paragraph 169) that Mr Mohammed perhaps did not have an entirely free rein in the matter, he regarded himself as a joint decision-maker and we consider that his part in the decision was of such magnitude as to count as a 'decision-maker' for the purposes of application of the Jhuti principles. However, in Jhuti the Supreme Court accepted (obiter) that the matters in the mind of a manager who participated in the dismissal process (such as an investigating manager) could also be attributed to the employer. In this case there was no formal investigation as no procedure was followed, but in our judgment, Ms Yates fulfilled that investigating manager role (and, indeed, on our findings acted with a view to engineering the Claimant's dismissal). Accordingly, we consider that we can take into account the matters in her mind as well in deciding what the employer's reason for dismissal was.
224. The position of Ms Harding, however, is different. There is no evidence that she participated in the decision-making process. However, we find that she does fall within the category identified in Jhuti as being a person "in the hierarchy of responsibility above the employee" whose reasons for acting may be taken into account if they invent a reason for dismissal on which the decision-maker subsequently acts. We base our finding that Ms Harding sat above the Claimant in the hierarchy on the fact that she was a member of the Senior UK Management Team (when the Claimant was not) and that she reported directly to the CEO (when the Claimant did not): see above paragraph 45.
225. We have next considered what precisely it was about the incident with Ms Harding that led Ms Yates, Ms Garrett-Cox and Mr Mohammed to decide to dismiss the Claimant. What Ms Yates and Ms Garrett-Cox said about that incident was that the Claimant had questioned Ms Harding's professional integrity, both orally in the meeting on 22 October 2018 and again in the email that the Claimant sent on 23 October 2018. This was, of course, how Ms Harding herself had categorised it, and Ms Yates and Ms Garrett-Cox explicitly accepted that categorisation, using the same terminology in the email at page 397 and the termination letter. The categorisation by Ms Harding of the Claimant's conduct as questioning her professional integrity was, we have found, wrong, since the Claimant was not questioning her professional integrity but her legal awareness (above paragraphs 141-146 and 154-155). However, the joint decision-maker, Mr Mohammed, recognised that distinction (see above paragraph 160), but still considered the email to have been "totally unacceptable". While we consider that there is an important distinction between questioning professional awareness and questioning integrity, we do not consider that it would have made any difference to Ms Yates or Ms Garrett-Cox's approach if Ms Harding had used the right terminology. Accordingly, although there was an element of 'invention' in Ms Harding's use of the word 'integrity', we do not consider that it is an invention of the sort that the Supreme Court had in mind in Jhuti. To attribute to the dismissal decision-makers here, Ms Harding's motivation, on the strength of an issue as to terminology such as this is not in our judgment the correct legal approach, applying the principles in Jhuti.
226. We accordingly find that the Respondent's principal reason for dismissal in this case was that the claimant had questioned Ms Harding's professional awareness/integrity both orally in the meeting on 22 October 2018 and in the subsequent email of 23 October 2018. That, in our judgment, was a matter of conduct on the part of the Claimant and we accordingly find that the principal reason for the Claimant's dismissal was her conduct, which is a potentially fair reason under section 98(2).
227. However, there are three further points that we should deal with for completeness: -
228. First, in our judgment what led the Respondent to dismiss the Claimant for that reason on this occasion not just the fact that the Claimant had questioned Ms Harding's legal awareness. This is because it is apparent that similarly robust language/conduct on other occasions (eg Mr Sutton's accusing the Claimant of being 'deceitful' or as harassing him or Mr Sutton's shouting at the Claimant - above paragraphs 67 and 105) had not led to dismissal for either the Claimant or Mr Sutton. What was different on this occasion was the fact that Ms Harding had been apparently so upset by the incident, as reflected in her discussing the matter with so many colleagues (above paragraphs 146, 151, 153, 159, 161), raising it with the management team in a formal meeting (above paragraph 163), and her expressed difficulty in working further with the Claimant thereafter, including her refusal to mediate (above paragraphs 161-162). Ms Harding's actions in this regard were, we find (consistent with our finding in relation to Detriment a. above) motivated by the fact that the Claimant had made protected disclosures. However, again, we are unable to conclude that Ms Harding's degree of upset, or her raising of the incident with colleagues, were an 'invention' of the kind that the Supreme Court had in mind in Jhuti. This is because we accept that Ms Harding was genuinely upset by the Claimant. Accordingly, even though part of the reason for that was the fact that the Claimant had made protected disclosures, applying the principles in Jhuti, we cannot attribute Ms Harding's motivation to the respondent.
229. Secondly, we should for the avoidance of doubt make clear that we do not find that Mr Mohammed, Ms Garrett-Cox or Ms Yates were motivated by the Claimant's protected disclosures when taking the decision to dismiss. None of them looked in any way at what had led up to the incident with Ms Harding or at the underlying issues that were of concern to the Claimant in her protected disclosures. Nor do we find, on the evidence we have heard, that we can draw any inference from the facts that the Claimant's role has not been replaced, that audits are now being undertaken by the Bahrain auditors who the Respondent's witnesses perceived (in general terms) as being more easy-going, or that the follow-up to the GTOP Audit has not yet taken place, that the reason for the Claimant's dismissal was that she had made protected disclosures or, more particularly, that she had driven the audit which had led to the first Generally Unsatisfactory rating for the respondent's UK function. Although these matters could have indicated that an ulterior motive on the part of the Respondent in dismissing the Claimant was to stop her making further protected disclosures about GTOP, in our judgment this was not the motivation of the decision-makers from whom we have heard evidence.
230. Thirdly, we do not accept that the respondent's principal reason for dismissal was that the Claimant's relationship with "key stakeholders" had broken down to the extent that they no longer wished to work with the Claimant as was asserted in the termination letter. This was not put forward by the Respondent's either in the termination letter or in their oral evidence at the hearing as the primary reason for dismissal and it was (at least in the way expressed in the termination letter) simply not true for the reasons we have set out above at paragraph 180."
The appeal
Discussion and analysis
"the special protection afforded by paragraph 6(4) to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate."
The separate conduct relied on, in the context of a small company, was that without informing the manager of their activities, the two union members formed a trade union chapel and secretly solicited new members. The EAT (Phillips J) held that these acts were plainly done in the course of taking part in trade union activities and therefore protected. The EAT acknowledged that not every such act is protected and gave as an example, "wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair." In Bass Taverns, the separate conduct relied on by the employer (and accepted by the tribunal as such) for dismissing a shop steward was disparaging remarks he made about the company at an induction meeting used as a recruiting forum for the union, held with the consent of the company. Pill LJ quoted those passages cited above from Lyon and found that there was nothing in the tribunal's findings beyond "the rhetoric and hyperbole which might be expected at a recruiting meeting for a trade union" to justify the conclusion that the remarks (which were accepted as having gone over the top) were separate conduct that justified a conclusion that he was not taking part in trade union activities. He made clear that it might have been different had the remarks been "malicious, untruthful or irrelevant to the task in hand".
"19. …there will be cases where it is right to treat a dismissal for things done or said by an employee in the course of trade union activities as falling outside the terms of section 152(1), because the things in question can fairly be regarded as a distinct reason for the dismissal notwithstanding the context in which they occurred; and his reference to acts which are "wholly unreasonable, extraneous or malicious" seems to me to capture the flavour of the distinction. That precise phraseology should not be treated as definitive ... but the point which it encapsulates is that in such a case it can fairly be said that it is not the trade union activities themselves which are the (principal) reason for the dismissal but some feature of them which is genuinely separable. ...
20. However ... this distinction should not be allowed to undermine the important protection which the statute is intended to confer. An employee should not lose that protection simply because something which he or she does in the course of trade union activities could be said to be ill-judged or unreasonable ... Bass Taverns ... is a good illustration of this: the employee was held to fall within the scope of the section even though he had gone "over the top"."
"22. The question in any claim of victimisation is what was the 'reason' that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straight forward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the managing director at home at 3 am. ... it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context a protected complaint. …"
"22. … Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to 'ordinary' unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle".
"51. … I entirely accept that, where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical - indeed sceptical - eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistle-blower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.
52. The consequence of Ms Romney's submission, however, is that there could be no explanation which the employer could offer in these circumstances which would relieve him from liability. The need to resolve a difficult and dysfunctional situation could never provide a lawful explanation for imposing detrimental treatment on an innocent whistleblower. I do not think that can possibly be right. It cannot be the case that the employer is necessarily obliged to ensure that the whistleblowers are not adversely treated in such a situation. This would mean that the reason why the employer acted as he did must be deemed to be the protected disclosure even where the tribunal is wholly satisfied on the facts that it was not."
"89.…Mr Mohammed rated the claimant highly, but agreed to dismiss her in light of her email of 23 October 2018 [95]; it was the way in which that email called Ms Harding's competence into question, that Mr Mohammed told the claimant called for an apology [160]; it was after Ms Harding appeared to be at the end of her tether, was not willing to mediate, and wanted to raise the matter formally with Mr Mohammed, that Ms Yates considered that doing nothing was not an option [161]; it was then that Ms Yates and Ms Garrett-Cox were inclining towards dismissal [165]; Ms Yates' briefing note highlighted how the claimant's behaviour had affected Ms Harding, and a wider problem of lack of people skills [166]; the dominant factor in Mr Mohammed's support for dismissal, was his view of the effect of the email on Ms Harding, and he also considered her behaviour in the José incident to have been inappropriate [169]; he agreed to dismiss "because of her conduct towards Ms Harding" and Ms Garrett-Cox was of the view "that her conduct towards others warranted her dismissal" [180]. Mr Withers, who heard the appeal, was satisfied that the claimant had "directly questioned Ms Harding's professional competence and that this was inappropriate." [191].
Elisabeth Laing LJ:
Underhill LJ: