Employee unfairly dismissed due to lack of due process (Mr O Argence-Lafon v Ark Syndicate Management Ltd)

In the case of Mr O Argence-Lafon v Ark Syndicate Management Ltd the employee was found to be unfairly dismissed, due to his employer’s failure to give him advance notice before a disciplinary meeting to dismiss him. This did not allow him the opportunity to prepare his response to the allegations.

The Facts in Mr O Argence-Lafon v Ark Syndicate Management Ltd

Mr O Argence-Lafon (the “Claimant”) commenced employment with PartnerRe (an international reinsurance company) as an Underwriter. He was working mainly in Marine and Energy (oil and gas) on 16 October 2003 and was later promoted to Senior Underwriter.

In around April 2018, Syndicate 3902 (the “Respondent”) acquired part of the Marine and Energy portfolio of PartnerRe. On 1 May 2018, the Claimant transferred over to the Respondent under the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE).

The Claimant argues that during the course of his employment he:

• was subjected to detriments for having made protected disclosures
• was unfairly dismissed

On 27 November 2019, following a presentation about a claim by the company ENI, the Claimant argued that the claim was probably invalid. He felt it is most likely caused by a loss of circulation and not an underground blowout.

The Claimant repeated the belief again to Mr Elliot Burton, Senior Underwriter, on 14 September 2020, that the ENI claim amounted to fraud and that this was supported by evidence. Mr Burton informed the Claimant that an independent review had been carried out. The conclusions were that there was no cause for concern about the validity of the claim and basically, he needed to move on.

On 27 April 2021, the Claimant met with Mr Beaton, Chief Executive Officer and reiterated his claim that he believed the ENI claim was fraudulent. He stated that Mr Burton and Mr Paul Dawson, the Managing Director, had failed to perform their roles correctly.

The Claimant then attended a performance review meeting with Mr Burton, on 30 April 2021, to discuss concerns over his performance. His work rate on risk counts and submission counts were also discussed as they were low for a senior underwriter.

On 6 May 2021, Mr Dawson and Mr Burton met with the Claimant to discuss his Performance Improvement Process (PIP). The Claimant argued that 3 of the 9 objectives were not realistic or achievable.  It was then suggested by Mr Dawson to the Claimant that he take part in a “protected conversation” as it seems unlikely any progress would be made in these objectives. He felt that time would be wasted going through a lengthy process where the Claimant would not be successful ending with his contract being terminated. The Claimant was given time until 10 May 2021 to provide a response.

The Claimant’s solicitors wrote on his behalf, on 18 June 2021, appealing the rejection of a grievance raised by him. They claimed the unreasonable objectives set and concerns regarding his performance were due to protective disclosures he had raised regarding the ENI claim fraud and referring to Mr Burton and Mr Dawson.

On 30 July 2021, the Claimant was invited to a disciplinary hearing. He was told by the Respondent that his failure to comply with the Respondent’s reasonable instruction to engage with the PIP had led to a breakdown in the relationship between him and Mr Burton.  The letter went on to say that “Irrespective of that, there’s clearly been a breakdown of trust between your line manager, and your line manager’s …manager”.

The Claimant’s employment at Ark Syndicate was terminated on 9 August 2021. The reasons given were his failure to reach an agreement on how to perform his role and reach his objectives as a senior underwriter. In addition, the breakdown of trust and confidence between him and his managers at Ark Syndicate, due to their complicity in an alleged fraud involving ENI, was stated as a reason.

The Claimant appealed the decision which was rejected. He brought a claim to the Employment Tribunal on 17 September 2021 for unfair dismissal and having been subjected to detriments for having made protected disclosures.

The Decision of the Employment Tribunal

The Employment Tribunal found that the Claimant had been unfairly dismissed under section 98 of the Employment Rights Act.

The reason given by the Respondent for ending his employment was not the real reason.  He was told that the purpose of the disciplinary hearing was to consider whether he should be disciplined for failure to engage with the PIP process. In reality, the principal reason was whether there had been a breakdown of trust and confidence. The Claimant should have been given advance notice and time to prepare his arguments on this matter.

The Employment Tribunal did not uphold his claims concerning the protected disclosures and detriments.

Our Lawyers View

Steve Norton, lawyer at Redmans, says – “In this case, the real reason for dismissing the employee was related to the accusations made on his behalf regarding his managers, rather than his performance which was not the principal reason. There was unfairness in withholding this key information as it prevented him from preparing his response”.

The decision of the Employment Tribunal can be found here.