The judge’s summary in the unfair dismissal case in which John Banerjee won his claim against Royal Bank of Canada has been published by a London employment tribunal and could see the bank facing a large compensation bill.
Rarely for such a case, Banerjee’s claim for whistleblower status was not dismissed, with Employment Judge, James Tayler, finding that he was unfairly dismissed principally for “the making of a protected disclosure”.
In the ruling, Judge Tayler refers to an address, in which staff were encouraged to report wrongdoing, and were told “don’t ask don’t tell will not be tolerated”.
The ruling finds that Banerjee did “tell” the bank that staff were taking a couple of minutes to attest that they had read policies vital for regulatory compliance when they had not read them carefully, or at all; and did “ask” the bank to investigate. “The bank’s actions thereafter were the opposite of their fine, but empty, words,” Judge Tayler writes. “Using his late arrival at work as a pretext, the bank sacked the Claimant.”
The granting of whistleblower status is important in such cases as it removes the near GBP 80,000 cap on payouts – Banerjee is claiming GBP 13 million, although the bank has indicated it will appeal the decision.
The judge does, however, find that Banerjee contributed to his dismissal by 25%, but that deduction in his potential award, which will, subject to the appeals process be decided in December, is made up for by the judge awarding a 25% increase in the payout for RBC failing to follow ACAS guidelines.
While the judge does note at least 14 instances of Banerjee being late for work in the year or so leading up to his dismissal, he finds that RBC had the opportunity to dismiss him for such action when it first extended his probation period (due to his poor time keeping). “I do not consider that any disclosures made by the Claimant prior to this date had a significant impact on the eventual decision to dismiss him,” he writes in the judgement, which also notes that no reference was made to time keeping in Banerjee’s appraisal a few months before dismissal.
Although the judgement details what was clearly a fractious relationship between Banerjee and many of his co-workers, the judge finds that the pivotal moment was when Banerjee sent an email to RBC’s global head of FICC, Jonathan Hunter, following the Town Hall meeting at which the latter told staff “don’t ask, don’t tell” (DADT) will not be tolerated. The email made several accusations around individual issues as well as the broader – and to the judge, more serious – claim that compliance documents were not being properly read and understood,
The judge finds that Banerjee’s complaints and observations were only partly investigated and that “…the bank wanted to avoid any investigation of a complaint that suggested that there was a systemic failure to ensure that policies had been fully read and understood”.
The judge adds that Adrian Palmer, RBC’s head of internal audit, did “nothing to investigate the Claimant’s principal and general allegation of a box ticking culture demonstrated by the way in which annual attestation was dealt with”.
During the hearing, Banerjee claimed that he was offered a “bribe” by Ed Monaghan, then RBC’s global head of FX, relating to a loss he suffered after an error in the bank’s Hong Kong office. However the judge dismissed the claim, observing that Monaghan was merely trying to assure Banerjee that the loss, from a Zimbabwe dollar trade, would not be assessed to his book.
The judge concludes, “I do not consider that the Claimant’s tardiness was the principal reason for his dismissal. It was after the Claimant’s DADT email that Mr Monaghan became interested in the Claimant’s late arrival and instructed Mr [Paul] Adamson [Banerjee’s desk head] to monitor him. The Respondent was beginning to look for a way of dismissing the Claimant.”