Employment Cases Update

Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601

Date published: 02/12/2020

Appeal against the dismissal by the EAT of the Claimants claim of unfair dismissal under the whistleblowing provisions which had been dismissed by the ET. Appeal dismissed.

The Appellant worked for the Respondent, a UK-based investment bank, from 23 February 2015 to 31 December 2015. His job title was Managing Director on the Emerging Markets Desk. He worked on the desk as a salesman alongside traders and other salespeople. The Appellant was dismissed in December 2015 and he made public interest disclosure claims under s 47B (detriment) and s 103A (unfair dismissal) of the 1996 Act and a contractual claim for unlawful deductions from pay. His claims included breaches of FCA regulations, concerns that traders were providing misleading information to clients, concerns that traders were engaging in an illegal practice known as front-running and concerns that traders were circumventing the processes for performing customer due diligence before making a trade. The ET found that none of these communications was a protected disclosure, and that to say that the principal reason for the Appellant's dismissal was that he had made protected disclosures would be "utterly fanciful". It found that the Appellant's "distrustful and obstructive" behaviour had made it "utterly impossible for the team to work with him, and that his distrust of the other traders is what he "was ultimately dismissed for". The EAT dismissed his appeal and he appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. The court first dismissed the ground that the ET had failed to set out ss 43A-B (and perhaps s 103A) and a brief summary of the most relevant authorities, thus breaching Rule 62(5) of the ET Rules (i.e. giving reasons for its decision). This is not a free-standing ground of appeal. Unless the Appellant can show that the tribunal made a substantive error of law, the failure to comply with Rule 62(5) in itself leads nowhere. The court then rejected ground 7 which was the reason for the dismissal of the Appellant, agreeing with the President of the EAT that even if, contrary to the Tribunal's conclusions, there had been any protected disclosures, it is clear that the reason for dismissal was properly separable from such disclosures. The other grounds of appeal were also dismissed.

Read the full text of the judgment on Bailii or download the file by clicking the link below.